Compiler’s Notes.

These sections, which comprised C.C.P. 1881, §§ 138 — 140; R.S., R.C., & C.L., §§ 4020 — 4022; C.S., §§ 6591 — 6593; I.C.A.,§§ 5-101 — 5-103, were repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present law, see Idaho Civil Procedure Rules 3, 16, and 38.

Cross References.

Contractual limitations invalid,§ 29-110.

Decedent’s cause of action, limitations on,§ 15-3-109.

Decedent’s estates, claims of creditors, limitations on,§§ 15-3-802, 15-3-803.

Decedent’s estates, rejected claim four months after notice,§ 15-3-803.

Decedent’s unclaimed property,§ 14-113.

Distributees, limitations on actions and proceedings against,§ 15-3-1006.

Divorce,§ 32-615.

Escheated property,§ 14-113.

Livestock, railroad injuring and killing, notice of claim, suit,§ 62-408.

Marriage annulment actions,§ 32-502.

Mechanics’ liens,§ 45-510.

Money found on body of decedent,§ 31-2118.

Overcharges by public utility, recovery,§ 61-642.

Personal representative, limitation on proceedings against,§ 15-3-1005.

Pleading the statute of limitations, Idaho R. Civ. P. 9(h).

Probate proceedings, limitation on commencement of,§ 15-3-108.

School, road, herd districts, presumption of validity,§ 31-857.

State warrants, checks outstanding,§ 67-1213.

Worker’s compensation, proceedings, reviews,§§ 72-701, 72-705, 72-706.

Amendment of Complaint.

Under the Federal Employers’ Liability Act, where a wife sued in her individual capacity for damages for the death of her husband who was an employee of a railroad company, when the action should have been brought in the name of the personal representative, the court held that, after the period of limitation had run, she might be granted the right to substitute herself as administratrix, and the plea of the bar of statute of limitation would be overruled, since that would not be the commencement of a new action. Missouri, Kan. & Tex. Ry. v. Wulf, 226 U.S. 570, 33 S. Ct. 135, 57 L. Ed. 355 (1913).

A married woman has such an interest in the cause of action for personal injuries to herself that she may commence and prosecute to a final judgment an action for recovery on account of negligence causing the same, unless objection is made on the ground of the lack of parties; when such an objection is made, a husband may be made a party to such action by amending the complaint and making the husband a party; bringing in of the husband in this manner, after the expiration of the statutory period of limitations, constitutes no new or different cause of action, and the action may, thereafter, be maintained by the husband and wife jointly. Muir v. Pocatello, 36 Idaho 532, 212 P. 345 (1922).

Where an amendment to a pleading introduces a new or different cause of action and makes a new or different demand, the statute of limitations continues to run until the amendment is actually filed. Denton v. Detweiler, 48 Idaho 369, 282 P. 82 (1929).

An amendment to a complaint in an action under the Federal Employees’ Liability Act for personal injuries, continued after his death by his administratrix, alleging the death of the original plaintiff as a result of the injury and demanding a judgment in a single sum for the cause of injury sustained by the deceased during his lifetime, and the pecuniary loss resulting from his death, introduces a new and distinct cause of action and, therefore, does not relate back to the beginning of the action so as to avoid the bar of statute of limitations. B & O.S.W.R.R. v. Carroll, 280 U.S. 491, 50 S. Ct. 182, 74 L. Ed. 566 (1930).

Claim by Subrogation.

Where a truck was damaged in a collision on March 16, 1971, the three year statute on tort claims barred insured lessee’s tort claim as of March 16, 1974, and the insurer’s claim by subrogation was likewise barred since the subrogee had no greater rights and was subject to the same statute of limitations. May Trucking Co. v. International Harvester Co., 97 Idaho 319, 543 P.2d 1159 (1975). — Counties.

Amendment of Complaint.

Under the Federal Employers’ Liability Act, where a wife sued in her individual capacity for damages for the death of her husband who was an employee of a railroad company, when the action should have been brought in the name of the personal representative, the court held that, after the period of limitation had run, she might be granted the right to substitute herself as administratrix, and the plea of the bar of statute of limitation would be overruled, since that would not be the commencement of a new action. Missouri, Kan. & Tex. Ry. v. Wulf, 226 U.S. 570, 33 S. Ct. 135, 57 L. Ed. 355 (1913).

A married woman has such an interest in the cause of action for personal injuries to herself that she may commence and prosecute to a final judgment an action for recovery on account of negligence causing the same, unless objection is made on the ground of the lack of parties; when such an objection is made, a husband may be made a party to such action by amending the complaint and making the husband a party; bringing in of the husband in this manner, after the expiration of the statutory period of limitations, constitutes no new or different cause of action, and the action may, thereafter, be maintained by the husband and wife jointly. Muir v. Pocatello, 36 Idaho 532, 212 P. 345 (1922).

Where an amendment to a pleading introduces a new or different cause of action and makes a new or different demand, the statute of limitations continues to run until the amendment is actually filed. Denton v. Detweiler, 48 Idaho 369, 282 P. 82 (1929).

An amendment to a complaint in an action under the Federal Employees’ Liability Act for personal injuries, continued after his death by his administratrix, alleging the death of the original plaintiff as a result of the injury and demanding a judgment in a single sum for the cause of injury sustained by the deceased during his lifetime, and the pecuniary loss resulting from his death, introduces a new and distinct cause of action and, therefore, does not relate back to the beginning of the action so as to avoid the bar of statute of limitations. B & O.S.W.R.R. v. Carroll, 280 U.S. 491, 50 S. Ct. 182, 74 L. Ed. 566 (1930).

Claim by Subrogation.

Commencement of Running of Statute.

Where a truck was damaged in a collision on March 16, 1971, the three year statute on tort claims barred insured lessee’s tort claim as of March 16, 1974, and the insurer’s claim by subrogation was likewise barred since the subrogee had no greater rights and was subject to the same statute of limitations. May Trucking Co. v. International Harvester Co., 97 Idaho 319, 543 P.2d 1159 (1975). Commencement of Running of Statute.

The statute does not begin to run against a cestui que trust until the trust is denied or some act is done by the trustee inconsistent with the trust. Nasholds v. McDonell, 6 Idaho 377, 55 P. 894 (1898), overruled on other grounds, Rice v. Rigley, 7 Idaho 115, 61 P. 290 (1900).

When one by his own carelessness or negligence fails to acquire knowledge that is within his reach, the person cannot protect himself behind the plea that he did not know the facts. Coe v. Sloan, 16 Idaho 49, 100 P. 354 (1909).

An express trust as well as an implied one is repudiated by adverse possession and the statutes of limitation begin to run from time of such repudiation. Coe v. Sloan, 16 Idaho 49, 100 P. 354 (1909).

Where there is no fraud shown, neither the ignorance of the person of the right to bring an action nor the mere silence of the person liable to the action will prevent the running of the statute of limitations. Coe v. Sloan, 16 Idaho 49, 100 P. 354 (1909).

When the fact of death is established by the presumption arising from seven years’ unexplained absence of a person, a cause of action on a benefit certificate payable upon the death of such person does not accrue until the end of the seven-year period of disappearance. Gaffney v. Royal Neighbors of Am., 31 Idaho 549, 174 P. 1014 (1918).

Right of action on absolute contract of guaranty accrues immediately upon the breach of the obligation guaranteed. Rawleigh Medical Co. v. Atwater, 33 Idaho 399, 195 P. 545 (1921).

Where contract contains acceleration clause positive in terms, default under such clause renders entire indebtedness due and statute runs from such default. Perkins v. Swain, 35 Idaho 485, 207 P. 585 (1922).

Statute of limitations does not begin to run against an action based upon fraud until the plaintiff in the exercise of proper diligence discovers the facts constituting the fraud. Ryan v. Old Veteran Mining Co., 37 Idaho 625, 218 P. 381 (1923).

Statute does not begin to run against voluntary, continuing trust obligation, resting in parol, until the trustee begins to act in hostility to the obligation, and knowledge of the repudiation is brought home to the cestui que trust. Davenport v. Bird, 45 Idaho 280, 261 P. 769 (1927); Brasch v. Brasch, 55 Idaho 777, 47 P.2d 676 (1935).

If holder of a municipal warrant issued under a contract relation has a remedy which he may pursue at the time of its issuance, the statute of limitations begins to run then, but if he has no remedy at that time, it begins to run when his remedy thereafter accrues. Little v. Emmett Irrigation Dist., 45 Idaho 485, 263 P. 40 (1928).

Where an indefinite delay in making demand for performance is contemplated by the terms of the contract, the period of the statutes of limitation will not be held to be the measure of time in which demands should be made. Johnston v. Keefer, 48 Idaho 42, 280 P. 324 (1929).

Where obstructions placed in defendant’s dam caused periodic flooding of plaintiff’s land, statute of limitations began to run from date of each periodic overflowing. Lavin v. Panhandle Lumber Co., 51 Idaho 1, 1 P.2d 186 (1931).

Where a foreign object is negligently left in a patient’s body by his physician and the patient is in ignorance of the fact and consequently of his right of action for malpractice, the cause of action does not accrue until the patient learns of, or in the exercise of reasonable care and diligence should have learned of, the presence of such foreign object in his body. Billings v. Sisters of Mercy, 86 Idaho 485, 389 P.2d 224 (1964). The limitation of§ 5-219 with respect to an action for medical malpractice based upon a faulty diagnosis begins to run at the time of the alleged malpractice and not when plaintiff knew or by the exercise of reasonable diligence should have known of such malpractice and the resulting injury to her. Owens v. White, 380 F.2d 310 (9th Cir. 1967).

In an action against physician by patient and her husband to recover for malpractice involving alleged misdiagnosis and negligent treatment, the statute of limitations did not begin to run until the plaintiff knew or should have known of the defendant’s negligence. Renner v. Edwards, 93 Idaho 836, 475 P.2d 530 (1969).

Court of Equity.

A court of equity is not bound to apply statute of limitations if it works an injustice to the creditor, and unusual conditions or extraordinary circumstances make it inequitable. Cummings v. Langroise, 36 F. Supp. 174 (D. Idaho 1940), aff’d 123 F.2d 969 (9th Cir. 1941), cert. denied, 316 U.S. 664, 62 S. Ct. 944, 86 L. Ed. 1741 (1942).

Where the plaintiff who had loaned decedent large sums of money under circumstances, and at times, when it was greatly needed in the preservation of the decedent’s estate, to support himself, and for the payment of numerous large counsel fees, and upon decedent’s death, the plaintiff brought action for the amount of the loans and sought the enforcement of a lien on the interest of the decedent in an estate, a federal district court sitting as a court of equity would not adjudge that recovery was barred by the five-year statute of limitations even if it could properly do so. Cummings v. Langroise, 36 F. Supp. 174 (D. Idaho 1940), aff’d 123 F.2d 969 (9th Cir. 1941), cert. denied, 316 U.S. 664, 62 S. Ct. 944, 86 L. Ed. 1741 (1942).

Effect of Bar.

A complaint may state a good cause of action and be sufficient to support a judgment although it shows conclusively upon its face that the cause of action is barred by the statute of limitations. Rosa v. Devingenzo, 53 Idaho 213, 24 P.2d 1051 (1933).

The running of the statute of limitations does not pay a debt nor satisfy an obligation. It is a mere privilege personal only to the party liable and is only a statute of repose. Anderson v. Ferguson, 56 Idaho 554, 57 P.2d 325 (1936).

Equitable Rights.

The statute is as complete a bar in equity as at law. Ames v. Howes, 13 Idaho 756, 93 P. 35 (1907); Steinour v. Oakley State Bank, 49 Idaho 293, 287 P. 949 (1930).

Ownership of the equitable title and possession within the time limited is sufficient to enable plaintiff to sue. American Mining Co. v. Trask, 28 Idaho 642, 156 P. 1136 (1915).

General Application.

Statutes of limitation act upon the remedy only and not upon the debt. Kelly v. Leachman, 3 Idaho 629, 33 P. 44 (1893); Sterrett v. Sweeney, 15 Idaho 416, 98 P. 418 (1908).

— Malpractice.

General rule is that defense of statute of limitations is not available during pendency of action unless claim was barred when action was commenced. Denton v. Detweiler, 48 Idaho 369, 282 P. 82 (1929). Statutes of limitation apply both to equity and law cases. Steinour v. Oakley State Bank, 49 Idaho 293, 287 P. 949 (1930).

Legal malpractice action was barred by a two-year statute of limitations because “some damage” occurred when property was transferred to a trust to gain a tax advantage since two clients could have reformed the trust at that time to correct any defects; therefore, a district court did not err by granting summary judgment in favor of several lawyers. Anderson v. Glenn, 139 Idaho 799, 87 P.3d 286 (2003).

Where a patient eventually lost her sight after cataract surgery in October 1999, the only issue of negligence presented concerned the doctor’s post-operative care. The patient’s claim could not have accrued before the first incident of alleged malpractice, which was on November 12, 1999. The patient filed her request for a prelitigation screening panel on November 8, 2001, less than two years after the alleged act of malpractice, so her claim was not barred by the statute of limitations. Conway v. Sonntag, 141 Idaho 144, 106 P.3d 470 (2005).

— Breach of Warranty.

Action for breach of warranty that land sold is practically free from alkali, although brought in equitable form, is not barred until the statute of limitations has expired, unless the delay is inexcusable or unless special circumstances exist which make it inequitable to permit recovery. Wilson v. Sunnyside Orchard Co., 33 Idaho 501, 196 P. 302 (1921).

— Counties.

The statute runs against an action by the county to recover money wrongfully withheld by a county officer as a fiduciary in trust for the county from the time the money was wrongfully received. Bannock County v. Bell, 8 Idaho 1, 65 P. 710 (1901). See also Blaine County v. Butte County, 45 Idaho 193, 261 P. 338 (1927); Lemhi County ex rel. Gilbreath v. Boise Livestock Loan Co., 47 Idaho 712, 278 P. 214 (1929).

— Decedents’ Estates.

Provisions of probate code concerning claims against decedents’ estates present a statutory scheme superseding in cases of death the general limitations applicable to obligations not barred at the time of death. Langroise v. Cummings, 123 F.2d 969 (9th Cir. 1941), cert. denied, 316 U.S. 664, 62 S. Ct. 944, 86 L. Ed. 1741 (1942).

— Defenses.

So long as a party who has a cause of action delays to enforce it in a legal tribunal, so long will any legal defense to that action be protected from the bar of the lapse of time. United States v. Clark, 96 U.S. 37, 24 L. Ed. 696 (1878).

Statutes of limitation do not apply to pure defenses, but are applicable only where affirmative relief is sought. Frank v. Davis, 34 Idaho 678, 203 P. 287 (1921); Morton v. Whitson, 45 Idaho 28, 260 P. 426 (1927).

— Deposits in Court.

There is no provision of law by which lapse of time will either bar a claimant from asserting his right to funds deposited in court to abide the court’s order, or prevent the court hearing his application and directing the fund to be paid to the one rightly entitled thereto. Anderson v. Ferguson, 56 Idaho 554, 57 P.2d 325 (1936). Property or funds in custodia legis are not liable to be seized, and, therefore, the statute of limitations does not with respect thereto run as to rights and liabilities arising therefrom. Anderson v. Ferguson, 56 Idaho 554, 57 P.2d 325 (1936).

— Irrigation District Warrant.

Statute of limitation runs against warrants issued by an irrigation district both in an action to place the warrants in judgment or in a mandamus proceeding. Tingwall v. King Hill Irrigation Dist., 66 Idaho 76, 155 P.2d 605 (1945).

— Malpractice.

The gist of a malpractice action is negligence and not a breach of the contract of employment; while the contract rule is still used occasionally it is generally recognized as being more of a device than a valid rule of law. Billings v. Sisters of Mercy, 86 Idaho 485, 389 P.2d 224 (1964).

— Mortgage Contract.

Where the mortgage form used by the parties was a pre-printed form obtained from a title company with not all the blanks filled in, specifically the paragraph containing the acceleration clause, none of these blanks rendered the acceleration clause paragraph vague or unenforceable nor did the blanks alone indicate that the parties intended to delete the acceleration clause. Parrott v. Wallace, 127 Idaho 306, 900 P.2d 214 (Ct. App. 1995).

— Municipal Corporations.

As a general rule, statutes of limitation run in favor of as well as against municipalities. Little v. Emmett Irrigation Dist., 45 Idaho 485, 263 P. 40 (1928).

— Personal Injury.

Based on these two sections, this and§ 5-219, a civil action to recover damages for injury to the person, caused by the wrongful act or negligence of another, can only be commenced within two years after the cause of action shall have accrued. Billings v. Sisters of Mercy, 86 Idaho 485, 389 P.2d 224 (1964).

— Quiet Title.

Where appellee sued to quiet title against canal company in federal court but did not plead that canal company’s maintenance liens were barred by the statute of limitations and the canal company brought suit in a state court to foreclose its liens, the state court was competent to determine whether the suit in the state court was filed within the time limited and in the proper tribunal, and appellee was left to its remedy in the suit in the state court. North Side Canal Co. v. Idaho Farms Co., 109 F.2d 354 (9th Cir. 1940).

Record notice of existence and nonpayment of mortgage does not entitle purchaser of mortgaged land to quiet title as against mortgage though debt is barred by limitation period, if purchaser is in privity with original mortgagor and knows that mortgage in fact has not been paid. Trusty v. Ray, 73 Idaho 232, 249 P.2d 814 (1952).

— Railroad Right-of-Way.

The statute of limitations will not run against an action by a railroad to maintain the integrity of the right-of-way granted by congress for the specific use and purpose of said railroad. Oregon S.L.R.R. v. Quigley, 10 Idaho 770, 80 P. 401 (1905).

— Setoff and Counterclaim.

Statutes of limitation apply as well to a sum attempted to be set off as to one on which an action is brought. Wonnacott v. Kootenai County, 32 Idaho 342, 182 P. 353 (1919).

A statute of limitations does not apply to a pure defense, but is applicable to forestall the granting of affirmative relief. Frank v. Davis, 34 Idaho 678, 203 P. 287 (1921); Morton v. Whitson, 45 Idaho 28, 260 P. 426 (1927).

A pure setoff — no affirmative relief being sought — is not subject to the statute of limitations. Zimmerman v. Dahlberg, 46 Idaho 583, 269 P. 991 (1928).

A counterclaim is subject to the statutes of limitation. Denton v. Detweiler, 48 Idaho 369, 282 P. 82 (1929).

Although an action for money loaned by a decedent to one of his heirs has been barred by the statute of limitation, the debt itself is not thereby extinguished, but may be set off against such heir’s distributive share of the estate. Hirning v. Webb, 91 Idaho 229, 419 P.2d 671 (1966).

— Trusts.

Trusts which arise from implication of law, or constructive trusts, are subject to the operation of the statute unless there has been fraudulent concealment of the cause of action, and the statute is as complete a bar in equity as at law. Ames v. Howes, 13 Idaho 756, 93 P. 35 (1907).

Express trusts are those which are created by direct and positive acts of the parties by writing, deed, or will and are not within the operation of the statutes of limitation. Ames v. Howes, 13 Idaho 756, 93 P. 35 (1907).

The period of limitations against a continuing, express or voluntary trust is four years. Brasch v. Brasch, 55 Idaho 777, 47 P.2d 676 (1935).

Interruption of Running of Statutes.

Neither the ignorance of a person of his right to bring an action, nor the mere silence of a person liable to the action prevents the running of the statute of limitations. Ames v. Howes, 13 Idaho 756, 93 P. 35 (1907); Coe v. Sloan, 16 Idaho 49, 100 P. 354 (1909).

A party who mistakes his remedy and seeks relief in a federal court does not thereby stop the running of the statute of limitations in the state court. Connolly v. Reed, 22 Idaho 29, 125 P. 213 (1912). See also Finney v. American Bonding Co., 13 Idaho 534, 90 P. 859 (1907); Morbeck v. Bradford-Kennedy Co., 19 Idaho 83, 113 P. 89 (1910).

If amendment of complaint introduces new or different cause of action or makes new or different demand, statute continues to run until amendment is filed; but if it does not set up a new cause, it relates back to the filing of the original complaint, and running of the statute is arrested at that point. Denton v. Detweiler, 48 Idaho 369, 282 P. 82 (1929).

Part payment on a note is equivalent to new promise in writing of date of payment. Vollmer Clearwater Co. v. Hines, 49 Idaho 563, 290 P. 397 (1930).

Knowledge of Cause of Action.

Where plaintiff’s suit for a malpractice occurring in 1948 was based upon the discovery of a sponge in plaintiff’s body revealed by exploratory operation in 1961, cause of action was not barred by the statute of limitations even though the suit was not brought until 1962. Billings v. Sisters of Mercy, 86 Idaho 485, 389 P.2d 224 (1964).

Pleading and Practice.

Where a cause of action is stated and the answer pleads the statute of limitations, it is error to sustain the defendant’s motion for a judgment on the pleadings even though the complaint shows the cause of action to be barred. Chemung Mining Co. v. Hanley, 9 Idaho 786, 77 P. 226 (1904). See, however, McLeod v. Stelle, 43 Idaho 64, 249 P. 254 (1926); Smith v. Oregon Short Line R.R., 47 Idaho 604, 277 P. 570 (1929); Whiffin v. Union P.R.R., 60 Idaho 141, 89 P.2d 540 (1939).

If statute of limitations is not pleaded, it will be deemed abandoned and can not be taken advantage of on objection to admissibility of the evidence. McLeod v. Rogers, 28 Idaho 412, 154 P. 970 (1916).

Where defendant alleges in answer title to easement gained by prescription, he does not waive plea of statute of limitations because pleadings refer to section of statute that does not apply in particular case. Last Chance Ditch Co. v. Sawyer, 35 Idaho 61, 204 P. 654 (1922).

The question of the statute of limitations must be urged in the lower court or it is deemed to be waived and can not be raised for the first time in the supreme court on appeal. Aker v. Coleman, 60 Idaho 118, 88 P.2d 869 (1939).

Am. Jur. 2d.

C.J.S.

ALR.

Validity, and applicability to causes of action, of statute shortening limitation period or period of repose. 76 A.L.R.6th 31.

Application of Relation Back Doctrine Permitting Change in Party After Statute of Limitations Has Run in State Court Action — Products Liability Cases. 93 A.L.R.6th 463.

Application of Relation Back Doctrine Permitting Change in Party After Statute of Limitations Has Run in State Court Action — Wrongful Death Cases. 94 A.L.R.6th 111.

Application of Relation Back Doctrine Permitting Change in Party After Statute of Limitations Has Run in State Court Action — Medical Malpractice Cases Against Physicians and Other Individual Health Care Providers. 95 A.L.R.6th 85.

Cross References.

State suing, application of statute of limitations,§ 5-225.

Adverse Possession.

Title by adverse possession cannot be acquired against the state; this section does not bar suit by state to recover lands reserved for, or dedicated to, some public use, such as school land. Hellerud v. Hauck, 52 Idaho 226, 13 P.2d 1099 (1932).

Church’s occupation of state land held under certificate of purchase, prior to full payment of the purchase price by the certificate holder, is an unlawful possession of state land upon which no claim of adverse possession can be based. Hellerud v. Hauck, 52 Idaho 226, 13 P.2d 1099 (1932).

There are certain categories of state-owned land which are immune from acquisition by adverse possession; the court having previously held that there are two such categories — land dedicated to a public use and school endowment land; however, the former bed of a navigable river which changed its course falls in no immune category. Rutledge v. State, 94 Idaho 121, 482 P.2d 515 (1971).

When the reason for holding property in trust for the public benefit ceases, it is no longer a unique or special benefit to the general public; and the reasons for clothing such property with a protective shield of immunity from acquisition by adverse possession also became meaningless. Rutledge v. State, 94 Idaho 121, 482 P.2d 515 (1971).

Commencement of Running of Statute.

In a case of periodic flooding the statute of limitations would begin to run from the date of each periodic flooding. Lavin v. Panhandle Lumber Co., 51 Idaho 1, 1 P.2d 186 (1931).

Statute begins to run against a grantee of the state only from the time he acquires title, and any occupancy prior to that time will not be deemed possession against the state. Hellerud v. Hauck, 52 Idaho 226, 13 P.2d 1099 (1932).

Immunity of Federal Government.

The federal government is not bound by a statute of limitations in the absence of a clear manifestation of such intention, and the United States has nowhere indicated its intention to be bound by the statute of limitations of Idaho. Schodde v. United States, 69 F.2d 866 (9th Cir. 1934).

School Trust Funds.

Statute of limitations did not apply to mortgage lien of state covering permanent endowment school trust fund. United States v. Fenton, 27 F. Supp. 816 (D. Idaho 1939).

Am. Jur. 2d.

C.J.S.

Cross References.

Adverse possession, requisites,§§ 5-207 — 5-213.

Amendments.

The 2006 amendment, by ch. 158, substituted “twenty (20) years” for “five (5) years.”

Administrator’s Account Eliminating Plea.

Where an administrator’s payments of interest on mortgage indebtedness were approved by the probate court and the administrator’s account, including the final account, acknowledged liability on the note and mortgage, the order settling the final account and distributing the realty involved subject to the lien of the mortgage, which order was permitted to become final by a lapse of time, was conclusive on the validity of the mortgage and could not be collaterally attacked on the ground that the note and mortgage were barred by the statute of limitations. Horn v. Cornwall, 65 Idaho 115, 139 P.2d 757 (1943).

Adverse Nature of Possession.

By the execution and delivery of a deed of land the entire legal title in the premises vests in the grantee, and if the grantor continues in possession afterward, his possession will be that of either a tenant or trustee of the grantee and he will be regarded as holding the premises in subserviency to the grantee and nothing short of an explicit disclaimer of such relation and a notorious assertion of right in himself will be sufficient to change the character of his possession and render it adverse to the grantee. Trask v. Success Mining Co., 28 Idaho 483, 155 P. 288 (1916).

One who establishes his legal title to real estate is presumed to have been possessed of the property within the meaning of this statute, and its occupation by another is deemed to have been in subordination to the legal title, unless it appears that it has been held and possessed adversely to such legal title for five [now 20] years; and where there is no proof showing that actual occupation was accompanied by a claim, or an intention, inconsistent with the title of the owner, an adverse claim based upon such occupation cannot be allowed. Bower v. Kollmeyer, 31 Idaho 712, 175 P. 964 (1918).

Uninterrupted and continuous possession for the prescriptive period raises the presumption that it was adverse and under claim of right. Bachman v. Reynolds Irrigation Dist., 56 Idaho 507, 55 P.2d 1314 (1936); Northwestern & Pac. Hypotheekbank v. Hobson, 59 Idaho 119, 80 P.2d 793 (1938).

If the owner of the property fails to eject the trespasser or enjoin the unauthorized use, after five [now 20] years his right to do so will be barred as against those who had actually made open, notorious, continuous, uninterrupted use, under a claim of right, with the knowledge of the owner, for the five [now 20] year period, but those persons who had not made such use could be enjoined from further interfering with the owner’s superior rights. State ex rel. Haman v. Fox, 100 Idaho 140, 594 P.2d 1093 (1979).

In an action to quiet title where the evidence showed that two parcels, which were part of a boundary dispute, were farmed as one field, either by a tenant who rented both parcels or by the owner of one parcel who rented the other, there was no showing of an open, hostile use for the full prescriptive period. Nelson v. Wagner, 108 Idaho 570, 700 P.2d 973 (Ct. App. 1985).

Any claim of title under an adverse possession theory involves a showing of adverse use. Christle v. Scott, 110 Idaho 829, 718 P.2d 1267 (Ct. App. 1986).

Where no evidence is presented to establish how the use of a servient estate began, a presumption arises that the use is adverse and under claim of right; the owner of the servient estate must then rebut that presumption by showing the use is permissive or by virtue of a license, contract or agreement. Christle v. Scott, 110 Idaho 829, 718 P.2d 1267 (Ct. App. 1986). Where the claimant of a prescriptive easement testified that he originally thought there was a recorded easement across the land, he had never thought he was using the road in derogation of anyone’s rights, he never thought that he was in any way trespassing on the property, and his use had never interfered in any way with anyone else’s use of the property, the evidence supported a finding of permissive use. Christle v. Scott, 110 Idaho 829, 718 P.2d 1267 (Ct. App. 1986).

A use initiated with permission may ripen into a prescriptive easement where the permission is later repudiated or revoked. Branson v. Miracle, 111 Idaho 933, 729 P.2d 408 (Ct. App. 1986).

Ordinarily, proof of open, notorious, uninterrupted use for the prescriptive period of five [now 20] years raises a presumption that the use was adverse. Branson v. Miracle, 111 Idaho 933, 729 P.2d 408 (Ct. App. 1986).

The general rule is that proof of open, notorious, continuous, uninterrupted use of the claimed right for the prescriptive period, without evidence as to how the use began, raises the presumption that the use was adverse and under a claim of right. Lemhi Cty. v. Moulton, 163 Idaho 404, 414 P.3d 226 (2018).

Coupling of Interests.

Claimant of a prescriptive easement can rely on the adverse use by the claimant’s predecessor for the prescriptive period or the claimant may couple such predecessor’s use with the claimant’s own use to establish the requisite five [now 20] continuous years of adverse use; and, in the absence of any evidence indicating how the predecessor’s use began, the claimant may invoke a rebuttable presumption that the use was adverse and under a claim of right as against the servient landowner; absent evidence to rebut the presumption, the claimant is entitled to rely on the presumption of adversity. Wood v. Hoglund, 131 Idaho 700, 963 P.2d 383 (1998).

Easements.

This section and§§ 5-204 — 5-206 are applicable to actions involving easements, since under law easements are real property. Beasley v. Engstrom, 31 Idaho 14, 168 P. 1145 (1917); Last Chance Ditch Co. v. Sawyer, 35 Idaho 61, 204 P. 654 (1922).

The right to conduct excess water upon and across land of another is an easement which may be obtained by prescription, and the period of adverse possession whereby it may be acquired is that mentioned in this section and§§ 5-204 and 5-206. Beasley v. Engstrom, 31 Idaho 14, 168 P. 1145 (1917).

Prescriptive right-of-way is acquired by open and continuous use for more than 5 [now 20] years. Northwestern & Pac. Hypotheekbank v. Hobson, 59 Idaho 119, 80 P.2d 793 (1938).

This section applied to claim for right of way for road and bridge. Bachman v. Reynolds Irrigation Dist., 56 Idaho 507, 55 P.2d 1314 (1936); Northwestern & Pac. Hypotheekbank v. Hobson, 59 Idaho 119, 80 P.2d 793 (1938).

Where, from the evidence, the trial court found that the driveway involved, a strip of land 10 feet wide along the boundary between lots owned by the respective parties, was used in common by the parties and their predecessors for parking, for access to garages and for taking fuel into basement apertures of the adjoining homes for a period of 21 years, and that such mutual use was not merely permissive but was such as would ripen into an easement by prescription and in fact into reciprocal and equal rights in the adjoining owners, such finding will not be disturbed on appeal. Sinnett v. Werelus, 83 Idaho 514, 365 P.2d 952 (1961). In action to enjoin trespass on real estate and affirmative defense of right of way by prescriptive easement raised, where defendants made no claim in fee to the road across plaintiff’s land but claimed easement over, upon, and across property admittedly owned in fee by plaintiff, the period of time necessary to establish the prescriptive right was measured by this section rather than by the provisions of§§ 5-209 and 5-210 which set forth the prerequisites to a claim of adverse possession. Deer Creek, Inc. v. Hibbard, 94 Idaho 533, 493 P.2d 392 (1972).

Evidence supported findings that road had been in usage more than five years prior to the commencement of the action, that the usage was not initiated in permission but as a claim of right and that said usage of the road was open, hostile, continuous, adverse and notorious so that defendants were entitled to prescriptive easement under this section. Deer Creek, Inc. v. Hibbard, 94 Idaho 533, 493 P.2d 392 (1972) (20 year prescriptive period, following 2006 amendment).

Use by tenants and their customers of landlord’s adjoining property as a parking lot for less than five years was a permissive use and, thus, would not support a claim for adverse possession or prescriptive easement. Fajen v. Powlus, 96 Idaho 625, 533 P.2d 746 (1975) (20 year prescriptive period, following 2006 amendment).

Where a roadway across a parcel of land had been used since the early 1930’s to provide access to adjoining property which was used for a single-family residence and for farming purposes until 1970, a prescriptive easement for such uses was established but such easement would not be expanded to include an increase in use caused by construction of a business and other residences after 1970, since this increased use had not continued for five years at the time the action was instituted. Gibbens v. Weisshaupt, 98 Idaho 633, 570 P.2d 870 (1977) (20 year prescriptive period, following 2006 amendment).

Where an adjoining landowner had used a roadway over the plaintiff’s property from 1947 to the date of the commencement of the action and had regularly maintained the road which provided the only access to his property from 1964 to 1971, a prescriptive easement was created by means of continuous use for the period required by this section. Stecklein v. Montgomery, 98 Idaho 671, 570 P.2d 1359 (1977).

Where a timber company contended that a prescriptive easement ensued from some travel by automobile over the plaintiffs’ land a few times a year from 1924 to the present, the trial court properly found that, although such an easement might have been created, the construction of a logging road constituted an impermissibly expanded use of the easement. Elder v. Northwest Timber Co., 101 Idaho 356, 613 P.2d 367 (1980).

An easement for the purpose of draining excess irrigation water across the land of another may be acquired by prescription; however, the use of the easement by the dominant estate must be continuous for five years and must be made in a reasonable, careful and prudent manner. Judge v. Whyte, 109 Idaho 184, 706 P.2d 73 (Ct. App. 1985) (20 year prescriptive period, following 2006 amendment).

A prescriptive easement cannot be obtained if use of the servient estate is by permission of the owner. Christle v. Scott, 110 Idaho 829, 718 P.2d 1267 (Ct. App. 1986).

Requirements for a private prescriptive easement by a landowner on the property of an adjoining landowner were met where the landowner had used the property as a roadway for approximately 30 years and had applied gravel to keep weeds from growing in the portion used as a vehicle parking lot. Murray v. State, 116 Idaho 744, 779 P.2d 419 (Ct. App. 1989).

The district judge’s basic findings, and the undisputed evidence, clearly established open, continuous, and uninterrupted use of road over the five-year statutory period. Absent from the record, however, were the necessary findings on the factual question of whether the use of road was adverse and under claim of right or whether the use was permissive. Therefore, judgment was vacated and remanded for additional findings and conclusions necessary for a determination of the prescriptive easement claim. Burns v. Alderman, 122 Idaho 749, 838 P.2d 878 (Ct. App. 1992). In action to enjoin trespass on real estate and affirmative defense of right of way by prescriptive easement raised, where defendants made no claim in fee to the road across plaintiff’s land but claimed easement over, upon, and across property admittedly owned in fee by plaintiff, the period of time necessary to establish the prescriptive right was measured by this section rather than by the provisions of§§ 5-209 and 5-210 which set forth the prerequisites to a claim of adverse possession. Deer Creek, Inc. v. Hibbard, 94 Idaho 533, 493 P.2d 392 (1972).

Evidence supported findings that road had been in usage more than five years prior to the commencement of the action, that the usage was not initiated in permission but as a claim of right and that said usage of the road was open, hostile, continuous, adverse and notorious so that defendants were entitled to prescriptive easement under this section. Deer Creek, Inc. v. Hibbard, 94 Idaho 533, 493 P.2d 392 (1972) (20 year prescriptive period, following 2006 amendment).

Use by tenants and their customers of landlord’s adjoining property as a parking lot for less than five years was a permissive use and, thus, would not support a claim for adverse possession or prescriptive easement. Fajen v. Powlus, 96 Idaho 625, 533 P.2d 746 (1975) (20 year prescriptive period, following 2006 amendment).

Where a roadway across a parcel of land had been used since the early 1930’s to provide access to adjoining property which was used for a single-family residence and for farming purposes until 1970, a prescriptive easement for such uses was established but such easement would not be expanded to include an increase in use caused by construction of a business and other residences after 1970, since this increased use had not continued for five years at the time the action was instituted. Gibbens v. Weisshaupt, 98 Idaho 633, 570 P.2d 870 (1977) (20 year prescriptive period, following 2006 amendment).

Where an adjoining landowner had used a roadway over the plaintiff’s property from 1947 to the date of the commencement of the action and had regularly maintained the road which provided the only access to his property from 1964 to 1971, a prescriptive easement was created by means of continuous use for the period required by this section. Stecklein v. Montgomery, 98 Idaho 671, 570 P.2d 1359 (1977).

Where a timber company contended that a prescriptive easement ensued from some travel by automobile over the plaintiffs’ land a few times a year from 1924 to the present, the trial court properly found that, although such an easement might have been created, the construction of a logging road constituted an impermissibly expanded use of the easement. Elder v. Northwest Timber Co., 101 Idaho 356, 613 P.2d 367 (1980).

An easement for the purpose of draining excess irrigation water across the land of another may be acquired by prescription; however, the use of the easement by the dominant estate must be continuous for five years and must be made in a reasonable, careful and prudent manner. Judge v. Whyte, 109 Idaho 184, 706 P.2d 73 (Ct. App. 1985) (20 year prescriptive period, following 2006 amendment).

A prescriptive easement cannot be obtained if use of the servient estate is by permission of the owner. Christle v. Scott, 110 Idaho 829, 718 P.2d 1267 (Ct. App. 1986).

Requirements for a private prescriptive easement by a landowner on the property of an adjoining landowner were met where the landowner had used the property as a roadway for approximately 30 years and had applied gravel to keep weeds from growing in the portion used as a vehicle parking lot. Murray v. State, 116 Idaho 744, 779 P.2d 419 (Ct. App. 1989).

The district judge’s basic findings, and the undisputed evidence, clearly established open, continuous, and uninterrupted use of road over the five-year statutory period. Absent from the record, however, were the necessary findings on the factual question of whether the use of road was adverse and under claim of right or whether the use was permissive. Therefore, judgment was vacated and remanded for additional findings and conclusions necessary for a determination of the prescriptive easement claim. Burns v. Alderman, 122 Idaho 749, 838 P.2d 878 (Ct. App. 1992). Where court found that defendant’s use of “turn-around” roadway had been permissive, court properly denied defendant’s claim of a private prescriptive right of easement. Bumgarner v. Bumgarner, 124 Idaho 629, 862 P.2d 321 (Ct. App. 1993).

Use of a driveway in common with the owner and the general public, in the absence of some decisive act on the user’s part indicating a separate and exclusive use on his part, negatives any presumption of individual right therein in his favor. Marshall v. Blair, 130 Idaho 675, 946 P.2d 975 (1997).

Use of a roadway must invade or infringe on the owner’s rights in order for the use to be considered adverse and, thus, to ripen into a prescriptive right of way. Marshall v. Blair, 130 Idaho 675, 946 P.2d 975 (1997).

In a claim for a prescriptive easement, the trial court erred in finding permissive use, as uncontradicted testimony revealed that the claimant’s use was without permission and the property owner knew of the use but never acted to curtail the usage, and there was no finding by the trial court that this testimony was not credible. Wood v. Hoglund, 131 Idaho 700, 963 P.2d 383 (1998).

Although defendants inspected the land prior to their purchase and observed the trails on the land, the testimony in the record merely established that the defendants were aware of the trails at the time of purchase, and the mere appreciation of the abundant trails, without more, was insufficient to establish that the defendants were put on notice of a prescriptive easement across their land. Baxter v. Craney, 135 Idaho 166, 16 P.3d 263 (2000).

Plaintiff’s testimony that he used a portion of the defendant’s land to access his back yard for debris removal, and to travel to his parents’ house, did not establish a prescriptive easement where the court found contradictory testimony more credible. Anderson v. Larsen, 136 Idaho 402, 34 P.3d 1085 (2001).

One plaintiff landowner’s predecessor had maintained the road which ran across defendant landowner’s property, and that maintenance was sufficient for tacking under this section, if, on remand, the trial court made findings as to that predecessor’s use of defendants’ property; but it was error to find that maintenance was sufficient to rebut a presumption of permissive use without evidence that defendants or their predecessors refused to participate in a maintenance association established by the several plaintiff landowners. Hodgins v. Sales, 139 Idaho 225, 76 P.3d 969 (2003).

Denial of prescriptive easement claim was affirmed because the district court properly concluded that the first neighbor used the path along with the general public and performed no independent act that would have put the owner on notice the first neighbor was claiming a prescriptive easement over his land. Hughes v. Fisher, 142 Idaho 474, 129 P.3d 1223 (2006).

Factual findings supported a district court’s conclusion that the claimants’ use of a road was open and notorious, continuous and uninterrupted, with the actual knowledge of adjoining landowners, and for the five-year [now 20-year] statutory period. The claimants, thus, acquired a prescriptive easement against adjoining landowners. Beckstead v. Price, 146 Idaho 57, 190 P.3d 876 (2008).

A party seeking to establish the existence of an easement by prescription must prove by clear and convincing evidence that use of the subject property was: (1) open and notorious, (2) continuous and uninterrupted, (3) adverse and under a claim of right, (4) with the actual or imputed knowledge of the owner of the servient tenement, and (5) for the statutory period. Backman v. Lawrence, 147 Idaho 390, 210 P.3d 75 (2009). In order to establish an easement by prescription, a claimant must prove by clear and convincing evidence use of the subject property that is (1) open and notorious, (2) continuous and uninterrupted, (3) adverse and under a claim of right, (4) with the actual or imputed knowledge of the owner of the servient tenement (5) for the statutory period of five (now twenty) years. Capstar Radio Operating Co. v. Lawrence, 153 Idaho 411, 283 P.3d 728 (2012).

A claimant seeking to establish a prescriptive easement must prove by clear and convincing evidence that the use of the subject property is (1) open and notorious, (2) continuous and uninterrupted, (3) adverse and under a claim of right, (4) with the actual or imputed knowledge of the owner of the servient tenement, and (5) for the statutory period. Lemhi Cty. v. Moulton, 163 Idaho 404, 414 P.3d 226 (2018).

Equitable Rights.

The statute is as complete a bar in equity as at law. Ames v. Howes, 13 Idaho 756, 93 P. 35 (1907); Steinour v. Oakley State Bank, 49 Idaho 293, 287 P. 949 (1930).

Ownership of the equitable title and possession within the time limited is sufficient to enable plaintiff to sue. American Mining Co. v. Trask, 28 Idaho 642, 156 P. 1136 (1915).

Establishment of Fence Line.

A fence is not converted into a boundary merely because it exists for the statutory period or longer especially where the appellants were in the actual exclusive, open, notorious, hostile, visible and adverse possession of the property in dispute. Trunnell v. Ward, 86 Idaho 555, 389 P.2d 221 (1964).

Where the fence was not on the true surveyed boundary between the properties, but the evidence indicated that the fence’s location was a matter of convenience, winding and meandering according to the lay of the land, and it was used as a livestock fence rather than as a boundary fence, there was no evidence of adverse possession. Christle v. Scott, 110 Idaho 829, 718 P.2d 1267 (Ct. App. 1986).

Gates.

Where there was no indication that claimant made any showing that gate was unreasonable or unduly restrictive, district court erred when it determined that defendants were not entitled to install a gate. The gate, however, may not unduly restrict authorized use of the roadway; it must be easy to open and wide enough to accommodate claimant’s and all other users’ uses. Marshall v. Blair, 130 Idaho 675, 946 P.2d 975 (1997).

General Public.

In order to establish a right on behalf of the general public of this state to use private property for recreational purposes, a party must submit reasonably clear and convincing proof of open, notorious, continuous, uninterrupted use, under a claim of right, with the knowledge of the owner of the servient tenement, for the prescriptive period. State ex rel. Haman v. Fox, 100 Idaho 140, 594 P.2d 1093 (1979).

Interruption of Running of Statute.

The “general public” or “the people of the state of Idaho,” as distinguished from specific individuals, cannot, absent specific statutory authorization, acquire prescriptive rights to private property. State ex rel. Haman v. Fox, 100 Idaho 140, 594 P.2d 1093 (1979). Interruption of Running of Statute.

If no fraud is shown, neither the ignorance of a person of his right to bring an action, nor the mere silence of the person liable to the action, prevents the running of the statute of limitations. Coe v. Sloan, 16 Idaho 49, 100 P. 354 (1909).

Minors.

Where co-tenant acquired real estate from other tenants after closing of estate, claim of minor heirs of one of the tenants to real estate was barred where claim was not asserted until 22 years after youngest minor reached majority. Chapin v. Stewart, 71 Idaho 306, 230 P.2d 998 (1951) (20 year prescriptive period, following 2006 amendment).

Pleading and Practice.

Where the facts showed that defendants had maintained an adverse possession for about 10 years prior to the commencement of plaintiff’s action to recover realty, prosecution of the action was barred. Fountain v. Lewiston Nat’l Bank, 11 Idaho 451, 83 P. 505 (1905) (20 year prescriptive period, following 2006 amendment).

Where statute of limitations is pleaded in the answer, the court must make a finding upon such a defense unless a finding thereon would not affect or control the judgment or call for a different judgment than that authorized by the findings made. Hailey v. Riley, 14 Idaho 481, 95 P. 686 (1908).

In action by mayor of a city for cancellation of deeds conveying portions of the town-site, complaint did not show on its face that it was barred by statute of limitations. Hodges v. Lemp, 24 Idaho 399, 135 P. 250 (1913).

Where trial court granted nonsuit and dismissed action solely on ground of res adjudicata, and no evidence was introduced on question of statute of limitations, the supreme court could not pass on such question. Rogers v. Rogers, 42 Idaho 158, 243 P. 655 (1926).

This court has uniformly held that to avoid the bar of the statute, the circumstances, time and place of discovery and why the discovery was not sooner made must be alleged in detail and with particularity. Fortner v. Cornell, 66 Idaho 512, 163 P.2d 299 (1945).

The defense that complaint discloses cause of action barred by limitations must be raised by special demurrer or answer. Fortner v. Cornell, 66 Idaho 512, 163 P.2d 299 (1945).

Prescriptive Period.

The finding of the trial court that a road was a public easement was unsupported by any evidence and, therefore, was clearly erroneous, where the road had been paved and maintained by the city since 1973, but the action was commenced in May of 1977. Aztec Ltd. v. Creekside Inv. Co., 100 Idaho 566, 602 P.2d 64 (1979) (See 2006 amendment).

Where the appellate court found there were disputed issues of fact as to whether the road was used for residential purposes continuously for the prescriptive period and what width the easement should have been, it reversed the decision of the district judge and remanded the case for presentation of further evidence. Brown v. Miller, 140 Idaho 439, 95 P.3d 57 (2004) (See 2006 amendment).

Quiet Title Actions.

Where the plaintiff in a suit against a canal company to quiet title to land and water rights did not plead the company claimed maintenance liens were barred by the two year statute of limitations, and the statutory period for foreclosure of the 1935 liens had not expired when the quiet title suit was filed, the plaintiff was confined to its remedy in collateral suits which had been brought in the state court by the company to foreclose liens. North Side Canal Co. v. Idaho Farms Co., 109 F.2d 354 (9th Cir. 1940).

In an action to quiet title, evidence that the plaintiff had held the land under color of title for more than the prescriptive period justifies the finding in his favor. Stickel v. Carter, 63 Idaho 78, 117 P.2d 477 (9th Cir. 1941).

Where purchasers of tax title for unpaid 1932 taxes entered into possession in 1933 and instituted quiet title suit which was decided in 1950 adversely to tax title purchasers and in favor of property owners, which decree was affirmed on appeal, and daughter of tax title purchasers instituted quiet title proceeding in 1951 pending appeal of prior case, the property owners though out of actual possession were in constructive possession of property since they had established legal title to property at the time daughter’s suit was instituted. Salvis v. Lawyer, 73 Idaho 469, 253 P.2d 589 (1953).

Where defendant’s predecessor in title for a period of 40 years claimed disputed area south of original boundary fence by cultivating crops within disputed area, a claim by plaintiff’s predecessor in title to disputed area on the ground that original boundary fence included some of his land, and statement by defendant that original boundary fence was probably not correct, did not prevent plaintiff’s action to quiet title to disputed area from being barred by five year limitation period. Beneficial Life Ins. Co. v. Wakamatsu, 75 Idaho 232, 270 P.2d 830 (1954).

Where plaintiff, in suit to quiet title, is not relying on an oral contract for the conveyance of real property and is the holder of the legal title and defendant does not establish adverse possession, the defense of limitations under the statute is not established. Dickerson v. Brewster, 88 Idaho 330, 399 P.2d 407 (1965).

Where less than five years had elapsed between defendants’ contract of purchase and subsequent purchaser plaintiff’s bringing of an action to quiet title, no easement by prescription could have arisen during that time. Fajen v. Powlus, 96 Idaho 625, 533 P.2d 746 (1975) (now 20 years).

Rebuttal of Permissive Use.

Where use, when tacked, was open, notorious, continuous, uninterrupted, under a claim of right, and with the defendant’s knowledge for the prescriptive period of five years; other landowner constructed gate; claimant utilized lane differently and additionally for access to their home; and claimant and other landowner disregarded no trespassing signs and cared for portion of lane, it was certainly established that claimant’s use was not under grant of permission and was in excess of use by the general public. Therefore, claimants rebutted presumption of permissive use and were entitled to prescriptive right to use lane for access to and from their home and for any related agricultural pursuits that they conduct on their property. Marshall v. Blair, 130 Idaho 675, 946 P.2d 975 (1997) (now 20 years).

Review.

When reviewing a district court’s determination that a private prescriptive easement exists, the supreme court must determine whether the district court properly applied the legal requirements for a prescriptive easement to the facts that the district court found. Marshall v. Blair, 130 Idaho 675, 946 P.2d 975 (1997). Where the plaintiff in a suit against a canal company to quiet title to land and water rights did not plead the company claimed maintenance liens were barred by the two year statute of limitations, and the statutory period for foreclosure of the 1935 liens had not expired when the quiet title suit was filed, the plaintiff was confined to its remedy in collateral suits which had been brought in the state court by the company to foreclose liens. North Side Canal Co. v. Idaho Farms Co., 109 F.2d 354 (9th Cir. 1940).

In an action to quiet title, evidence that the plaintiff had held the land under color of title for more than the prescriptive period justifies the finding in his favor. Stickel v. Carter, 63 Idaho 78, 117 P.2d 477 (9th Cir. 1941).

Where purchasers of tax title for unpaid 1932 taxes entered into possession in 1933 and instituted quiet title suit which was decided in 1950 adversely to tax title purchasers and in favor of property owners, which decree was affirmed on appeal, and daughter of tax title purchasers instituted quiet title proceeding in 1951 pending appeal of prior case, the property owners though out of actual possession were in constructive possession of property since they had established legal title to property at the time daughter’s suit was instituted. Salvis v. Lawyer, 73 Idaho 469, 253 P.2d 589 (1953).

Where defendant’s predecessor in title for a period of 40 years claimed disputed area south of original boundary fence by cultivating crops within disputed area, a claim by plaintiff’s predecessor in title to disputed area on the ground that original boundary fence included some of his land, and statement by defendant that original boundary fence was probably not correct, did not prevent plaintiff’s action to quiet title to disputed area from being barred by five year limitation period. Beneficial Life Ins. Co. v. Wakamatsu, 75 Idaho 232, 270 P.2d 830 (1954).

Where plaintiff, in suit to quiet title, is not relying on an oral contract for the conveyance of real property and is the holder of the legal title and defendant does not establish adverse possession, the defense of limitations under the statute is not established. Dickerson v. Brewster, 88 Idaho 330, 399 P.2d 407 (1965).

Where less than five years had elapsed between defendants’ contract of purchase and subsequent purchaser plaintiff’s bringing of an action to quiet title, no easement by prescription could have arisen during that time. Fajen v. Powlus, 96 Idaho 625, 533 P.2d 746 (1975) (now 20 years).

Rebuttal of Permissive Use.

Where use, when tacked, was open, notorious, continuous, uninterrupted, under a claim of right, and with the defendant’s knowledge for the prescriptive period of five years; other landowner constructed gate; claimant utilized lane differently and additionally for access to their home; and claimant and other landowner disregarded no trespassing signs and cared for portion of lane, it was certainly established that claimant’s use was not under grant of permission and was in excess of use by the general public. Therefore, claimants rebutted presumption of permissive use and were entitled to prescriptive right to use lane for access to and from their home and for any related agricultural pursuits that they conduct on their property. Marshall v. Blair, 130 Idaho 675, 946 P.2d 975 (1997) (now 20 years).

Review.

Seizin and Possession.

When reviewing a district court’s determination that a private prescriptive easement exists, the supreme court must determine whether the district court properly applied the legal requirements for a prescriptive easement to the facts that the district court found. Marshall v. Blair, 130 Idaho 675, 946 P.2d 975 (1997). Seizin and Possession.

Prima facie showing of legal title raises a presumption of seizin and possession for period of five years. Beneficial Life Ins. Co. v. Wakamatsu, 75 Idaho 232, 270 P.2d 830 (1954) (now 20 years).

Affirmative defenses of mutual agreement and long acquiescence in fence boundary, and adverse possession included defense of five year limitation period, since affirmative defenses pleaded were inconsistent with seizin and possession of disputed area by plaintiff. Beneficial Life Ins. Co. v. Wakamatsu, 75 Idaho 232, 270 P.2d 830 (1954) (now 20 years).

Trusts.

Express trusts are not within the operation of the statute of limitations, but trusts which arise from an implication of law or constructive trusts are within the operation of the statute. Ames v. Howes, 13 Idaho 756, 93 P. 35 (1907).

An express, as well as an implied, trust is repudiated by adverse possession, and the statute of limitations begins to run from the time the beneficiary has notice of such repudiation. Coe v. Sloan, 16 Idaho 49, 100 P. 354 (1909); Olympia Mining & Milling Co. v. Kerns, 24 Idaho 481, 135 P. 255 (1913), appeal dismissed, 236 U.S. 211, 35 S. Ct. 415, 59 L. Ed. 542 (1915).

Unimproved Land.

Where land over which prescription was claimed was unimproved until 1961 the general rule that open, notorious, continued and uninterrupted use for the prescriptive period without explanation of how it began raises a presumption that it was an adverse use and under a claim of right was not applicable, it applying only to improved lands. Trunnell v. Ward, 86 Idaho 555, 389 P.2d 221 (1964).

If the lands of the servient estate are wild, unenclosed, or unimproved, it is presumed that the use is permissive. Christle v. Scott, 110 Idaho 829, 718 P.2d 1267 (Ct. App. 1986).

Unpatented Land.

Actual issue of patent to state land is not necessary to start running of statute against purchaser; it begins to run when full equitable title vests in the grantee and all that remains to be done is to transfer the legal title — the issue and delivery of the patent. Hellerud v. Hauck, 52 Idaho 226, 13 P.2d 1099 (1932).

Unpatented Mining Claims.

Open, notorious, adverse possession of an unpatented mining claim for a period of more than five [now 20] years is a bar to an action to recover possession of the same. Bradley v. Johnson, 11 Idaho 689, 83 P. 927 (1906).

Water Rights.

Cited

Where plaintiff appropriated a certain number of inches of the waters of a creek in 1870, and continuously used the same, and defendant appropriated other waters of the creek in 1880 and used the same up to 1893, but without, until that time, interfering with plaintiff’s use of the water claimed by him, plaintiff’s right to sue to enforce his claim to the water as against the defendant was not barred by the statute of limitations. Brossard v. Morgan, 7 Idaho 215, 61 P. 1031 (1900). Cited Malad Valley Irrigation Co. v. Campbell, 2 Idaho 411, 18 P. 52 (1888); Von Rosenberg v. Perrault, 5 Idaho 719, 51 P. 774 (1898); Daly v. Josslyn, 7 Idaho 657, 65 P. 442 (1901); Moss v. Ramey, 14 Idaho 598, 95 P. 513 (1908); McKinnon v. McIlhargey, 24 Idaho 720, 135 P. 826 (1913); Smith v. Yates, 25 Idaho 137, 136 P. 622 (1913); Zehner v. Castle, 27 Idaho 215, 148 P. 470 (1915); Gonzaga Univ. v. Masini, 42 Idaho 660, 249 P. 93 (1926); Lavin v. Panhandle Lumber Co., 51 Idaho 1, 1 P.2d 186 (1931); McGlochlin v. Coffin, 61 Idaho 440, 103 P.2d 703 (1940); Independence Placer Mining Co. v. Hellman, 62 Idaho 180, 109 P.2d 1038 (1941); Snyder v. Blake, 69 Idaho 14, 202 P.2d 394 (1949); Burns v. Skogstad, 69 Idaho 227, 206 P.2d 765 (1949); Smith v. Long, 76 Idaho 265, 281 P.2d 483 (1955); Downing v. Boehringer, 82 Idaho 52, 349 P.2d 306 (1960); Christensen v. West, 92 Idaho 87, 437 P.2d 359 (1968); Lisher v. Krasselt, 94 Idaho 513, 492 P.2d 52 (1972); West v. Smith, 95 Idaho 550, 511 P.2d 1326 (1973); Merrill v. Penrod, 109 Idaho 46, 704 P.2d 950 (Ct. App. 1985); Kaupp v. City of Hailey, 110 Idaho 337, 715 P.2d 1007 (Ct. App. 1986); Roberts v. Swim, 117 Idaho 9, 784 P.2d 339 (Ct. App. 1989); State v. Camp, 134 Idaho 662, 8 P.3d 657 (Ct. App. 2000); Merrill v. Gibson, 139 Idaho 840, 87 P.3d 949 (2004); Fuquay v. Low, 162 Idaho 373, 397 P.3d 1132 (2017).

Am. Jur. 2d.

C.J.S.

ALR.

§ 5-204. Action arising out of claim to title or rents or profits.

No cause of action, or defense to an action, arising out of the title to real property, or to rents or profits out of the same, can be effectual unless it appears that the person prosecuting the action, or making the defense, or under whose title the action is prosecuted or the defense is made, or the ancestor, predecessor or grantor, of such person, was seized or possessed of the premises in question within twenty (20) years before the commencement of the act in respect to which such action is prosecuted or defense made.

History.

C.C.P. 1881, § 144; R.S., R.C., & C.L., § 4037; C.S., § 6597; I.C.A.,§ 5-204; am. 2006, ch. 158, § 2, p. 474.

Amendments.

The 2006 amendment, by ch. 158, substituted “twenty (20) years” for “five (5) years.”

Adverse Possession.

One who has purchased a tract of land and pays the purchase price and enters into possession believing he has title, whether he receives a good deed or an imperfect one, or none at all, nevertheless enters adversely to the vendor and all the rest of the world and holds possession adversely. Fountain v. Lewiston Nat’l Bank, 11 Idaho 451, 83 P. 505 (1905).

Burden is on party claiming right by prescription to show the extent and the amount of his use and of the right claimed. Last Chance Ditch Co. v. Sawyer, 35 Idaho 61, 204 P. 654 (1922).

Before adverse possession by one tenant in common against another can begin, the one in possession must, by the acts of the most open and notorious character, clearly show to the world, and to all having occasion to observe the condition and occupancy of the property, that his possession is intended to exclude and does exclude the rights of his cotenant. Vaughan v. Hollingsworth, 35 Idaho 722, 208 P. 838 (1922). «Title 5»«Ch. 2»«§ 5-204»

Amendments.

The 2006 amendment, by ch. 158, substituted “twenty (20) years” for “five (5) years.”

Adverse Possession.

One who has purchased a tract of land and pays the purchase price and enters into possession believing he has title, whether he receives a good deed or an imperfect one, or none at all, nevertheless enters adversely to the vendor and all the rest of the world and holds possession adversely. Fountain v. Lewiston Nat’l Bank, 11 Idaho 451, 83 P. 505 (1905).

Burden is on party claiming right by prescription to show the extent and the amount of his use and of the right claimed. Last Chance Ditch Co. v. Sawyer, 35 Idaho 61, 204 P. 654 (1922).

Before adverse possession by one tenant in common against another can begin, the one in possession must, by the acts of the most open and notorious character, clearly show to the world, and to all having occasion to observe the condition and occupancy of the property, that his possession is intended to exclude and does exclude the rights of his cotenant. Vaughan v. Hollingsworth, 35 Idaho 722, 208 P. 838 (1922). Possession, to be adverse, must have been for the whole period prescribed by statute, actual, open, visible, notorious, continuous and hostile to true owner and world at large. Pleasants v. Henry, 36 Idaho 728, 213 P. 565 (1923).

To acquire title to land by adverse possession, it is necessary to comply with all provisions of statute relating thereto. Meyer v. Schoeffler, 39 Idaho 500, 227 P. 1061 (1924).

In action by plaintiffs to quiet title to house and lot in 1951, the defendants who entered into possession of property under a deed in 1933 and who remained in possession thereafter either in person or by renters were owners of property by adverse possession and color of title. Obermeyer v. Idohl, 76 Idaho 103, 278 P.2d 188 (1954).

Color of Title.

Widow could not legally convey the entire title to community property, but a deed from her purporting to convey the entire title would give the grantee color of title under which he might obtain title by adverse possession. Coe v. Sloan, 16 Idaho 49, 100 P. 354 (1909).

Where plaintiff, in suit to quiet title, is not relying on an oral contract for the conveyance of real property and is the holder of the legal title and defendant does not establish adverse possession, the defense of limitations under the statute is not established. Dickerson v. Brewster, 88 Idaho 330, 399 P.2d 407 (1965).

Easements.

An easement for the purpose of drainage across the land of another may be acquired by prescription; such an easement is real property under the laws of Idaho, and the period of adverse possession is that mentioned in§§ 5-203 and 5-206. Beasley v. Engstrom, 31 Idaho 14, 168 P. 1145 (1917).

Minors.

Where co-tenant acquired real estate from other tenants after closing of estate, claim of minor heirs of one of the tenants to real estate was barred where claim was not asserted until 22 years after youngest minor reached majority. Chapin v. Stewart, 71 Idaho 306, 230 P.2d 998 (1951).

Permissive Occupation.

A prescriptive title can not be founded upon use and occupation, which is not adverse to the title of the owner, but which is under permission of owner. Davis v. Davenney, 7 Idaho 742, 65 P. 500 (1901).

A claimant of property who enters into possession under an agreement whereby, upon the happening of a contingency, he may be under the duty or necessity of restoring possession to the grantor or true owner holds possession for his grantor or the true owner and can not claim by adverse possession against him. Fountain v. Lewiston Nat’l Bank, 11 Idaho 451, 83 P. 505 (1905).

Where there is no proof showing that actual occupation was accompanied by a claim or an intention inconsistent with the title of the owner, an adverse claim based upon such occupation can not be allowed. Bower v. Kollmeyer, 31 Idaho 712, 175 P. 964 (1918).

Quiet Title Actions.

Where purchasers of tax title for unpaid 1932 taxes entered into possession in 1933 and instituted quiet title suit which was decided in 1950 adversely to tax title purchasers and in favor of property owners, which decree was affirmed on appeal, and daughter of tax title purchasers instituted quiet title proceeding in 1951 pending appeal of prior case, the property owners, though out of actual possession, were in constructive possession of property since they had established legal title to property at the time daughter’s suit was instituted. Salvis v. Lawyer, 73 Idaho 469, 253 P.2d 589 (1953).

Review on Appeal.

Where the plea of statute of limitations in bar of action is neither argued nor briefed on appeal from a judgment for the defendants, it will not be considered by the supreme court. Malcolm v. Hanmer, 64 Idaho 66, 127 P.2d 331 (1942).

Setting Aside Sheriff’s Deed.

An action to set aside a judgment and sheriff’s deed based thereon is barred after the lapse of five [now 20] years from the execution of the deed, in the absence of a showing that reasonable diligence has been exercised in the discovery of the acts complained of. Ryan v. Woodin, 9 Idaho 525, 75 P. 261 (1904).

Vacation of Streets.

Action to have city ordinances vacating streets declared null and void should have been brought at least within five [now 20] years from the date such cause of action arose. Canady v. Coeur d’Alene Lumber Co., 21 Idaho 77, 120 P. 830 (1911).

Am. Jur. 2d.

C.J.S.

Commencement of Action.

An action under this section must be commenced within five years of the accrual of the right of entry. Smith v. Long, 76 Idaho 265, 281 P.2d 483 (1955).

Permissive Entry.

An adverse right is not originated by consent but rather against the will and without consent of the true owner, and generally rests on an original trespass, which matures into a property right by reason of the true owner allowing the claimant or trespasser to continue the adverse use and possession uninterruptedly and with assertion of right until the statutory period has run, which bars the true owner from either asserting or defending his right to the property. Hall v. Taylor, 57 Idaho 662, 67 P.2d 901 (1937); Northwestern & Pac. Hypotheekbank v. Hobson, 59 Idaho 119, 80 P.2d 793 (1938).

Amendments.

The 2006 amendment, by ch. 158, substituted “twenty (20) years” for “five (5) years.”

Adverse Possession.

Plaintiff was entitled to quiet title to disputed land where plaintiff’s action was commenced a month after acquisition of title and less than five years after entry of defendant who claimed by adverse possession. Smith v. Long, 76 Idaho 265, 281 P.2d 483 (1955) (now 20 years).

Inasmuch as appellants failed to assume the burden of proof of their adverse possession of the disputed area, their alleged possession of such property under any other theory “is deemed to have been under and in subordination to the legal title” which respondents duly established with the accompanying presumption of respondents having been “possessed thereof within the time required by law.” Larson v. Lindsay, 80 Idaho 242, 327 P.2d 775 (1958). «Title 5»«Ch. 2»«§ 5-206»

Amendments.

The 2006 amendment, by ch. 158, substituted “twenty (20) years” for “five (5) years.”

Adverse Possession.

Plaintiff was entitled to quiet title to disputed land where plaintiff’s action was commenced a month after acquisition of title and less than five years after entry of defendant who claimed by adverse possession. Smith v. Long, 76 Idaho 265, 281 P.2d 483 (1955) (now 20 years).

Canal Company Stock.

Inasmuch as appellants failed to assume the burden of proof of their adverse possession of the disputed area, their alleged possession of such property under any other theory “is deemed to have been under and in subordination to the legal title” which respondents duly established with the accompanying presumption of respondents having been “possessed thereof within the time required by law.” Larson v. Lindsay, 80 Idaho 242, 327 P.2d 775 (1958). Canal Company Stock.

Where it was shown that plaintiff had notice of defendants’ open, notorious and uninterrupted use of water right represented by shares of stock of a canal company, by virtue of which the defendants gained prescriptive title thereto, the court properly quieted title to the stock in defendants. Pflueger v. Hopple, 66 Idaho 152, 156 P.2d 316 (1945).

Defenses.

Affirmative defenses of mutual agreement and long acquiescence in fence boundary, and adverse possession included defense of five year limitation period, since affirmative defenses pleaded were inconsistent with seizin and possession of disputed area by plaintiff. Beneficial Life Ins. Co. v. Wakamatsu, 75 Idaho 232, 270 P.2d 830 (1954) (20 year prescriptive period, following 2006 amendment).

Easements.

An easement for the purpose of drainage across land of another may be acquired by prescription; such an easement is real property, under the laws of Idaho, and the period of prescription is that mentioned in§§ 5-203 and 5-204 and this section. Beasley v. Engstrom, 31 Idaho 14, 168 P. 1145 (1917).

The burden is on the party claiming the right by prescription to show the extent and the amount of his use and of the right claimed. Last Chance Ditch Co. v. Sawyer, 35 Idaho 61, 204 P. 654 (1922).

Holder of Legal Title.

Where plaintiff, in suit to quiet title, is not relying on an oral contract for the conveyance of real property and is the holder of the legal title and defendant does not establish adverse possession, the defense of limitations under the statute is not established. Dickerson v. Brewster, 88 Idaho 330, 399 P.2d 407 (1965).

Municipal Property.

Property held by city not for a public purpose may be acquired by adverse possession as against city. Robinson v. Lemp, 29 Idaho 661, 161 P. 1024 (1916).

Nonpayment of Taxes.

The fact that appellants did not nor did their predecessors pay taxes and assessments levied against properties involved would defeat their cause of action seeking to establish fence as boundary of their and adjoining landowners’ property. Larson v. Lindsay, 80 Idaho 242, 327 P.2d 775 (1958).

Presumptions.

Prima facie showing of legal title raises a presumption of seizin and possession for period of five years. Beneficial Life Ins. Co. v. Wakamatsu, 75 Idaho 232, 270 P.2d 830 (1954) (20 year prescriptive period, following 2006 amendment).

Quiet Title Actions.

This section establishes a presumption that ownership of property lies in the person establishing legal or written title to it. Broadhead v. Hawley, 109 Idaho 952, 712 P.2d 653 (Ct. App. 1985). Quiet Title Actions.

A motion for summary judgment would be better made in a quiet title action only after the defendant has answered and the issues are framed. Osterloh v. State, 100 Idaho 702, 604 P.2d 716 (1979).

Streets and Highways.

This section has no application whatever to public highways; the public never acquires the legal title to land over which a highway extends. Meservey v. Gulliford, 14 Idaho 133, 93 P. 780 (1908).

No title can be acquired in public streets by adverse possession. Hanson v. Proffer, 23 Idaho 705, 132 P. 573 (1913).

Sufficiency of Evidence.

Evidence was sufficient to establish in action to establish fence as boundary between adjoining land owners that plaintiff’s title was not founded upon a written instrument, judgment or decree and that the disputed area had not been protected by a substantial inclosure by plaintiffs or their predecessors. Larson v. Lindsay, 80 Idaho 242, 327 P.2d 775 (1958).

Tax Titles.

Where purchasers of tax title for unpaid 1932 taxes entered into possession in 1933 and instituted quiet title suit which was decided in 1950 adversely to tax title purchasers and in favor of property owners, which decree was affirmed on appeal, and daughter of tax title purchasers instituted quiet title proceeding in 1951 pending appeal of prior case, the property owners, though out of actual possession, were in constructive possession of property since they had established legal title to property at the time daughter’s suit was instituted. Salvis v. Lawyer, 73 Idaho 469, 253 P.2d 589 (1953).

Water Rights.

A water right, being real property, may be acquired through prescriptive title by adverse possession and use for more than the statutory period. Pflueger v. Hopple, 66 Idaho 152, 156 P.2d 316 (1945).

Am. Jur. 2d.

ALR.

Amendments.

The 2006 amendment, by ch. 158, substituted “twenty (20) years” for “five (5) years.”

Adverse Character of Possession.

Where record failed to indicate the trustee or the contingent remaindermen had any notice that the cestui que trust was holding adversely to their respective interests, quiet title action failed for lack of proof of occupying the land adversely for the requisite five-year period. Robertson v. Swayne, 85 Idaho 239, 378 P.2d 195 (1963) (now 20 year period, following 2006 amendment). «Title 5»«Ch. 2»«§ 5-207»

Amendments.

The 2006 amendment, by ch. 158, substituted “twenty (20) years” for “five (5) years.”

Adverse Character of Possession.

Adverse Possession.

Where record failed to indicate the trustee or the contingent remaindermen had any notice that the cestui que trust was holding adversely to their respective interests, quiet title action failed for lack of proof of occupying the land adversely for the requisite five-year period. Robertson v. Swayne, 85 Idaho 239, 378 P.2d 195 (1963) (now 20 year period, following 2006 amendment). Adverse Possession.

Enclosure by fence of strip of land for period of 8 years established title by adverse possession, even though owner was away from vicinity for six years, since owner does not have to have notice or knowledge of adverse possession, if possession of claimant is open and notorious under claim of title. Calkins v. Kousouros, 72 Idaho 150, 237 P.2d 1053 (1951) (now 20 year period, following 2006 amendment).

Enclosure and exclusive possession of disputed land by claimant prevails, even though claimant and true owner are mistaken as to exact lines covered by their deeds. Calkins v. Kousouros, 72 Idaho 150, 237 P.2d 1053 (1951).

Party claiming title by adverse possession through enclosure of disputed property by fence does not admit title of the other by offering to buy disputed property. Calkins v. Kousouros, 72 Idaho 150, 237 P.2d 1053 (1951).

In action by plaintiffs to quiet title to house and lot in 1951, the defendants who entered into possession of property under a deed in 1933 and who remained in possession thereafter either in person or by renters were owners of property by adverse possession and color of title. Obermeyer v. Idohl, 76 Idaho 103, 278 P.2d 188 (1954).

Commencement of action by plaintiff to quiet title filed 30 days prior to end of five year period of adverse possession asserted by defendant interrupted the period of defendant’s adverse possession, and the rights of the defendant as against the plaintiff must be determined as of the filing date. Smith v. Long, 76 Idaho 265, 281 P.2d 483 (1955) (now 20 year period, following 2006 amendment).

Running of the period of adverse possession was not suspended as to the interests of minors during their minority where the title of such minors was held in trust for them by a court-appointed trustee. Jones v. State, 91 Idaho 823, 432 P.2d 420 (1966).

A survey subsequent to entering into possession cannot be used as a basis for adverse possession under written claim. Standall v. Teater, 96 Idaho 152, 525 P.2d 347 (1974).

Where the evidence indicated that the adverse claimants had built a garage and placed a mobile home on the property, that their predecessor had rented trailer spaces on the land over a continuous period exceeding five years, that the claimants built a shop and that the predecessor poured gravel on the property in the trailer parking area, that the claimants’ possession and improvement of the property extended over a period of approximately four years, nine months, and that their predecessor occupied or used the property for seven years, the evidence supported the trial court’s findings both that the property had been “improved,” and that it had been put to “the ordinary use of the occupant,” as denoted in§ 5-208, over a continuous period of five years. Gage v. Davis, 104 Idaho 48, 655 P.2d 942 (Ct. App. 1982) (now 20 year period, following 2006 amendment).

Nonprofit corporation which supplied water to mobile home park asserted its claim to well lots under adverse possession pursuant to a written claim and/or an oral claim of right. However, the plaintiff’s use of the well lots could have been consistent with use by permission rather than adverse possession. As a result, the trial court erred in granting summary judgment for the corporation. East Lizard Butte Water Corp. v. Howell, 122 Idaho 679, 837 P.2d 805 (1992).

This section provides that a party must possess property under color of title for five years to claim title by adverse possession. Rice v. Hill City Stock Yards Co., 121 Idaho 576, 826 P.2d 1288 (1992) (now 20 year period, following 2006 amendment). Where common driveway thirteen to twenty-one feet in width was maintained within a thirty-foot easement originally granted, improvements constructed by landowners which interfered with the thirty-foot easement were not adverse and party’s right to full width of the easement had not been extinguished because a need to actually utilize the unused portion of the easement had not yet arisen; judgment in favor of party’s right to full width of easement was upheld. Winn v. Eaton, 128 Idaho 670, 917 P.2d 1310 (Ct. App. 1996).

Boundaries.

Where grantor, in selling the land to the plaintiff, indicated that the fence in place was the boundary line, and nothing was said about any arrangement to change the fence, the plaintiff established title of all the land up to the fence by adverse possession. Mulder v. Stands, 71 Idaho 22, 225 P.2d 463 (1950).

Where a boundary is established by agreement, followed by acquiescence and possession, and particularly possession for the full statutory period for establishing title by prescription, the line thus established determines the location of the estate and establishes the true line or division. Mulder v. Stands, 71 Idaho 22, 225 P.2d 463 (1950) (now 20 years).

Deeds Giving Color of Title.

Where one has title to only an undivided one-half interest, he can not convey the other one-half interest; however, his deed, purporting to convey the entire property, gives color of title to the whole property to the grantee. Coe v. Sloan, 16 Idaho 49, 100 P. 354 (1909).

Even though a mayor has no authority to make a deed to a city street, still his deed gives to the grantee color of title. Boise City v. Wilkinson, 16 Idaho 150, 102 P. 148 (1909).

One who enters and occupies land, claiming title against the world, possesses adversely, even though his possession is founded in mistake as to the validity of his deed. Bayhouse v. Urquides, 17 Idaho 286, 105 P. 1066 (1909).

A remainderman who holds adversely under a deed from the life tenant purporting to convey the absolute fee simple estate claims under color of title. Wilson v. Linder, 21 Idaho 576, 123 P. 487 (1912).

Evidence of Assessment.

Evidence by assessor that he assessed land enclosed by fence in name of claimant established payment of taxes on disputed land, even though assessor did not know for sure that land within fence was owned by claimant. Calkins v. Kousouros, 72 Idaho 150, 237 P.2d 1053 (1951).

Highway Access.

Mining Claim.

The well-established elements that a party must establish by clear and satisfactory evidence in order to establish adverse possession upon a written claim of title are: (1) that they entered into possession, as that term is defined by§ 5-208, of the disputed property; (2) under a claim of title; (3) exclusive of other right; (4) that there has been a continuous occupation and possession of the disputed property described in the written instrument; (5) that they have so held the property for the statutory period 3; and (6) that they have paid all taxes, state, county or municipal, which have been levied and assessed upon such land according to law. Kennedy v. Schneider, 151 Idaho 440, 259 P.3d 586 (2011). Mining Claim.

Claimant of mining claim through adverse possession must not only show compliance with statutory provision, but must show possession of property for five consecutive years. Law v. Fowler, 45 Idaho 1, 261 P. 667 (1927) (now 20 year period, following 2006 amendment).

Payment of Taxes.

Payment of taxes is not a requirement for claiming a title under either this section or§ 5-208; rather, it is a necessary element for a finding of adverse possession under oral claim of title, pursuant to§ 5-209 and§ 5-210. Stout v. Westover, 106 Idaho 533, 681 P.2d 1008 (1984).

Where county’s assessment methodology made it impossible to produce conclusive evidence that an adverse claimant had paid taxes on a disputed parcel of land, title cannot be quieted in the claimant. Kennedy v. Schneider, 151 Idaho 440, 259 P.3d 586 (2011).

Possession of Cestui Que Trust.

A cestui que trust in possession of trust realty is in law regarded as a tenant at law of the trustee, his possession being subordinate and not adverse to the trustee’s legal title. In the absence of a clear and manifest hostility brought to the knowledge of the trustee and until the tenancy of the cestui is terminated, he cannot hold adversely to the trustee. Robertson v. Swayne, 85 Idaho 239, 378 P.2d 195 (1963).

Possession of Part of Tract.

Plaintiff was not in constructive possession of entire half block of land divided into separate lots through his actual possession of some of the lots. Carter v. Ruddy, 166 U.S. 493, 17 S. Ct. 640, 41 L. Ed. 1090 (1897).

Enclosure and improvement of portions of property constituting a known farm or single lot, according to the usual custom of the surrounding country, may constitute adverse possession of the whole tract. Crandall v. Goss, 30 Idaho 661, 167 P. 1025 (1917).

In an action to quiet title, evidence that the plaintiff had held the land under color of title for more than the prescriptive period justifies finding in his favor. Stickel v. Carter, 63 Idaho 78, 117 P.2d 477 (1941).

Quiet Title Actions.

A party seeking to quiet title has the burden pursuant to this section to establish the following by clear and satisfactory evidence: (1) that he entered into possession, as that term is defined by§ 5-208, of the disputed property; (2) under a claim of title; (3) exclusive of other right; (4) that there has been a continued occupation and possession of the disputed property described in the decree of distribution; (5) that he has held the property for five years; and (6) that he has paid all taxes, state, county or municipal, which have been levied and assessed upon such land according to law. Pincock v. Pocatello Gold & Copper Mining Co., 100 Idaho 325, 597 P.2d 211 (1979) (now 20 year period, following 2006 amendment).

Mining Claim.

In action seeking to quiet title to property by adverse possession where no specific findings were made by the trial court as to the issue of possession under a written instrument as defined by§ 5-208 or as to whether the disputed property had been possessed as defined by§ 5-208 1., 2. or 3. (now (1)(a), (1)(b), or (1)(c)) and, if so, whether§ 5-208 4. (now (1)(d)) would then apply whereby possession of part of a lot might conceivably entitle one to possession of the whole if all the requirements of subsection 4. ((1)(d)) had been met, remand was necessary so the trial court could make specific findings as to whether the specific necessary elements of adverse possession required by this section and§ 5-208 had been proved. Owen v. Boydstun, 102 Idaho 31, 624 P.2d 413 (1981). Mining Claim.

Claimant of mining claim through adverse possession must not only show compliance with statutory provision, but must show possession of property for five consecutive years. Law v. Fowler, 45 Idaho 1, 261 P. 667 (1927) (now 20 year period, following 2006 amendment).

Payment of Taxes.

Payment of taxes is not a requirement for claiming a title under either this section or§ 5-208; rather, it is a necessary element for a finding of adverse possession under oral claim of title, pursuant to§ 5-209 and§ 5-210. Stout v. Westover, 106 Idaho 533, 681 P.2d 1008 (1984).

Where county’s assessment methodology made it impossible to produce conclusive evidence that an adverse claimant had paid taxes on a disputed parcel of land, title cannot be quieted in the claimant. Kennedy v. Schneider, 151 Idaho 440, 259 P.3d 586 (2011).

Possession of Cestui Que Trust.

A cestui que trust in possession of trust realty is in law regarded as a tenant at law of the trustee, his possession being subordinate and not adverse to the trustee’s legal title. In the absence of a clear and manifest hostility brought to the knowledge of the trustee and until the tenancy of the cestui is terminated, he cannot hold adversely to the trustee. Robertson v. Swayne, 85 Idaho 239, 378 P.2d 195 (1963).

Possession of Part of Tract.

Plaintiff was not in constructive possession of entire half block of land divided into separate lots through his actual possession of some of the lots. Carter v. Ruddy, 166 U.S. 493, 17 S. Ct. 640, 41 L. Ed. 1090 (1897).

Enclosure and improvement of portions of property constituting a known farm or single lot, according to the usual custom of the surrounding country, may constitute adverse possession of the whole tract. Crandall v. Goss, 30 Idaho 661, 167 P. 1025 (1917).

In an action to quiet title, evidence that the plaintiff had held the land under color of title for more than the prescriptive period justifies finding in his favor. Stickel v. Carter, 63 Idaho 78, 117 P.2d 477 (1941).

Quiet Title Actions.

A party seeking to quiet title has the burden pursuant to this section to establish the following by clear and satisfactory evidence: (1) that he entered into possession, as that term is defined by§ 5-208, of the disputed property; (2) under a claim of title; (3) exclusive of other right; (4) that there has been a continued occupation and possession of the disputed property described in the decree of distribution; (5) that he has held the property for five years; and (6) that he has paid all taxes, state, county or municipal, which have been levied and assessed upon such land according to law. Pincock v. Pocatello Gold & Copper Mining Co., 100 Idaho 325, 597 P.2d 211 (1979) (now 20 year period, following 2006 amendment).

Railroad Right-of-Way.

In action seeking to quiet title to property by adverse possession where no specific findings were made by the trial court as to the issue of possession under a written instrument as defined by§ 5-208 or as to whether the disputed property had been possessed as defined by§ 5-208 1., 2. or 3. (now (1)(a), (1)(b), or (1)(c)) and, if so, whether§ 5-208 4. (now (1)(d)) would then apply whereby possession of part of a lot might conceivably entitle one to possession of the whole if all the requirements of subsection 4. ((1)(d)) had been met, remand was necessary so the trial court could make specific findings as to whether the specific necessary elements of adverse possession required by this section and§ 5-208 had been proved. Owen v. Boydstun, 102 Idaho 31, 624 P.2d 413 (1981). Railroad Right-of-Way.

Title to unused portion of right-of-way granted to railroad by act of congress can not be acquired by adverse possession while the right-of-way is being used for railroad purposes. Crandall v. Goss, 30 Idaho 661, 167 P. 1025 (1917).

Am. Jur. 2d.

C.J.S.

Actual Notice Not Sufficient.

Actual notice to owner that another claims adversely to him, even when continued for five years, does not dispense with necessity of requirement of actual and continued possession and occupation. Pleasants v. Henry, 36 Idaho 728, 213 P. 565 (1923) (now 20 year requirement).

Burden of Proof.

A party claiming title to property by adverse possession has the burden of proving all the elements by clear and satisfactory evidence. Rice v. Hill City Stock Yards Co., 121 Idaho 576, 826 P.2d 1288 (1992).

Claim Founded upon a Written Instrument.

Plaintiff’s claim to disputed triangular area west of fence separating defendant’s property from hers was not “founded upon a written instrument” within the meaning of this section because no written instrument purported to give her actual title to or color of title to the disputed strip. Persyn v. Favreau, 119 Idaho 154, 804 P.2d 327 (Ct. App. 1990).

Where the plaintiff’s possession of property was shown by leases over three decades which expressly allowed the lessees to use river property, the evidence was sufficient for the trial court to find that plaintiff had continuously exercised control over that river property in its entirety for over fifty years. DeChambeau v. Estate of Smith, 132 Idaho 568, 976 P.2d 922 (1999).

Claim of Minors.

Where co-tenant acquired real estate from other tenants after closing of estate, claim of minor heirs of one of the tenants to real estate was barred where claim was not asserted until 22 years after youngest minor reached majority. Chapin v. Stewart, 71 Idaho 306, 230 P.2d 998 (1951).

Running of the period of adverse possession was not suspended as to the interests of minors during their minority where the title of such minors was held in trust for them by a court-appointed trustee. Jones v. State, 91 Idaho 823, 432 P.2d 420 (1967).

Easements.

Where common driveway thirteen to twenty-one feet in width was maintained within a thirty-foot easement originally granted, improvements constructed by landowners which interfered with the thirty-foot easement were not adverse and party’s right to full width of the easement had not been extinguished because a need to actually utilize the unused portion of the easement had not yet arisen; judgment in favor of party’s right to full width of easement was upheld. Winn v. Eaton, 128 Idaho 670, 917 P.2d 1310 (Ct. App. 1996).

Enclosure.

Party claiming title by adverse possession through enclosure of disputed property by fence does not admit title of the other by offering to buy disputed property. Calkins v. Kousouros, 72 Idaho 150, 237 P.2d 1053 (1952).

Enclosure by fence of strip of land for period of eight years established title by adverse possession, even though owner was away from vicinity for six years, since owner does not have to have notice or knowledge of adverse possession, if possession of claimant is open and notorious under claim of title. Calkins v. Kousouros, 72 Idaho 150, 237 P.2d 1053 (1952) (now 20 year period, following 2006 amendment).

Actual notice to owner that another claims adversely to him, even when continued for five years, does not dispense with necessity of requirement of actual and continued possession and occupation. Pleasants v. Henry, 36 Idaho 728, 213 P. 565 (1923) (now 20 year requirement).

Burden of Proof.

A party claiming title to property by adverse possession has the burden of proving all the elements by clear and satisfactory evidence. Rice v. Hill City Stock Yards Co., 121 Idaho 576, 826 P.2d 1288 (1992).

Claim Founded upon a Written Instrument.

Plaintiff’s claim to disputed triangular area west of fence separating defendant’s property from hers was not “founded upon a written instrument” within the meaning of this section because no written instrument purported to give her actual title to or color of title to the disputed strip. Persyn v. Favreau, 119 Idaho 154, 804 P.2d 327 (Ct. App. 1990).

Where the plaintiff’s possession of property was shown by leases over three decades which expressly allowed the lessees to use river property, the evidence was sufficient for the trial court to find that plaintiff had continuously exercised control over that river property in its entirety for over fifty years. DeChambeau v. Estate of Smith, 132 Idaho 568, 976 P.2d 922 (1999).

Claim of Minors.

Where co-tenant acquired real estate from other tenants after closing of estate, claim of minor heirs of one of the tenants to real estate was barred where claim was not asserted until 22 years after youngest minor reached majority. Chapin v. Stewart, 71 Idaho 306, 230 P.2d 998 (1951).

Running of the period of adverse possession was not suspended as to the interests of minors during their minority where the title of such minors was held in trust for them by a court-appointed trustee. Jones v. State, 91 Idaho 823, 432 P.2d 420 (1967).

Easements.

Where common driveway thirteen to twenty-one feet in width was maintained within a thirty-foot easement originally granted, improvements constructed by landowners which interfered with the thirty-foot easement were not adverse and party’s right to full width of the easement had not been extinguished because a need to actually utilize the unused portion of the easement had not yet arisen; judgment in favor of party’s right to full width of easement was upheld. Winn v. Eaton, 128 Idaho 670, 917 P.2d 1310 (Ct. App. 1996).

Enclosure.

Party claiming title by adverse possession through enclosure of disputed property by fence does not admit title of the other by offering to buy disputed property. Calkins v. Kousouros, 72 Idaho 150, 237 P.2d 1053 (1952).

Enclosure by fence of strip of land for period of eight years established title by adverse possession, even though owner was away from vicinity for six years, since owner does not have to have notice or knowledge of adverse possession, if possession of claimant is open and notorious under claim of title. Calkins v. Kousouros, 72 Idaho 150, 237 P.2d 1053 (1952) (now 20 year period, following 2006 amendment). Enclosure and exclusive possession of disputed land by claimant prevails, even though claimant and true owner are mistaken as to exact lines covered by their deeds. Calkins v. Kousouros, 72 Idaho 150, 237 P.2d 1053 (1952).

A barbed wire fence which was shown to be no longer up was insufficient as a “substantial enclosure.” Standall v. Teater, 96 Idaho 152, 525 P.2d 347 (1974).

A fence erected by a neighbor for the purpose of containing livestock or to prevent livestock from entering the neighbor’s property will not suffice to satisfy the enclosure requirement for adverse possession by a claimant adjacent to the neighbor’s property. Capps v. Wood, 117 Idaho 614, 790 P.2d 395 (Ct. App. 1990).

Evidence of Assessment.

Evidence by assessor that he assessed land enclosed by fence in name of claimant established payment of taxes on disputed land, even though assessor did not know for sure that land within fence was owned by claimant. Calkins v. Kousouros, 72 Idaho 150, 237 P.2d 1053 (1952).

Evidence of Improvement.

Where the evidence indicated that the adverse claimants had built a garage and placed a mobile home on the property, that their predecessor had rented trailer spaces on the land over a continuous period exceeding five years, that the claimants built a shop and that the predecessor poured gravel on the property in the trailer parking area, that the claimants’ possession and improvement of the property extended over a period of approximately four years, nine months, and that their predecessor occupied or used the property for seven years, the evidence supported the trial court’s findings both that the property had been “improved,” and that it had been “put to the ordinary use of the occupant,” as denoted in this section, over a continuous period of five years. Gage v. Davis, 104 Idaho 48, 655 P.2d 942 (Ct. App. 1982) (now 20 year period, following 2006 amendment).

Findings of Court.

In action seeking to quiet title to property by adverse possession where no specific findings were made by the trial court as to the issue of possession under a written instrument as defined by this section or as to whether the disputed property had been possessed as defined by paragraph (1)(a), (1)(b), or (1)(c) of this section, and, if so, whether paragraph (1)(d) of this section would then apply whereby possession of part of a lot might conceivably entitle one to possession of the whole if all the requirements of the subsection had been met, remand was necessary so the trial court could make specific findings as to whether the specific necessary elements of adverse possession required by§ 5-207 and this section had been proved. Owen v. Boydstun, 102 Idaho 31, 624 P.2d 413 (1981).

Need to Use.

Where an easement has been created, but no occasion has arisen for its use, the owner of the servient tenement may plant trees, erect a fence, etc., and such use will not be deemed to be adverse, until the need to use the easement arises. Kolouch v. Kramer, 120 Idaho 65, 813 P.2d 876 (1991).

Payment of Taxes.

Payment of taxes is not a requirement for claiming a title under either§ 5-207 or this section; rather, it is a necessary element for a finding of adverse possession under oral claim of title, pursuant to§ 5-209 and§ 5-210. Stout v. Westover, 106 Idaho 533, 681 P.2d 1008 (1984).

Permissive or Statutory Use.

A prescriptive right to the use of water cannot be acquired by the use thereof with the consent of the owner, nor where he is required by statute to let others use it. Hall v. Blackman, 8 Idaho 272, 68 P. 19 (1902).

Nonprofit corporation which supplied water to mobile home park asserted its claim to well lots under adverse possession pursuant to a written claim and/or an oral claim of right. However, the plaintiff’s use of the well lots could have been consistent with use by permission rather than adverse possession. As a result, the trial court erred in granting summary judgment for the corporation. East Lizard Butte Water Corp. v. Howell, 122 Idaho 679, 837 P.2d 805 (1992).

Am. Jur. 2d.

C.J.S.

Adverse Possession.

Party claiming title by adverse possession through enclosure of disputed property by fence does not admit title of the other by offering to buy disputed property. Calkins v. Kousouros, 72 Idaho 150, 237 P.2d 1053 (1951).

Claim of adverse possession to strip of land based solely on addition to building constructed by claimant applied only to that portion of the strip of land on which the addition stood and did not apply to balance of the strip of land. Hogan v. Blakney, 73 Idaho 274, 251 P.2d 209 (1952).

Adverse possession to real estate can only be sustained by proof of uninterrupted and continuous use for the entire prescriptive period. Hogan v. Blakney, 73 Idaho 274, 251 P.2d 209 (1952).

Possession of enclosed disputed area by defendant’s predecessors in title for a period of 40 years by virtue of cultivation of crops constituted adverse possession. Beneficial Life Ins. Co. v. Wakamatsu, 75 Idaho 232, 270 P.2d 830 (1954).

Respondent’s uninterrupted and continuous use of the East Ditch for more than the prescriptive period raises the presumption that his use was adverse and under a claim of right and there was no evidence to overcome this presumption; therefore, respondent acquired and was the owner of an easement or right of way for the flow of his full head of 60 miners inches of water in and through the East Ditch, even though his 80 shares of stock in the canal company evidenced a water right appurtenant to his land of 50 miners inches of water. Ramseyer v. Jamerson, 78 Idaho 504, 305 P.2d 1088 (1957). «Title 5»«Ch. 2»«§ 5-209»

Adverse Possession.

Party claiming title by adverse possession through enclosure of disputed property by fence does not admit title of the other by offering to buy disputed property. Calkins v. Kousouros, 72 Idaho 150, 237 P.2d 1053 (1951).

Claim of adverse possession to strip of land based solely on addition to building constructed by claimant applied only to that portion of the strip of land on which the addition stood and did not apply to balance of the strip of land. Hogan v. Blakney, 73 Idaho 274, 251 P.2d 209 (1952).

Adverse possession to real estate can only be sustained by proof of uninterrupted and continuous use for the entire prescriptive period. Hogan v. Blakney, 73 Idaho 274, 251 P.2d 209 (1952).

Possession of enclosed disputed area by defendant’s predecessors in title for a period of 40 years by virtue of cultivation of crops constituted adverse possession. Beneficial Life Ins. Co. v. Wakamatsu, 75 Idaho 232, 270 P.2d 830 (1954).

Respondent’s uninterrupted and continuous use of the East Ditch for more than the prescriptive period raises the presumption that his use was adverse and under a claim of right and there was no evidence to overcome this presumption; therefore, respondent acquired and was the owner of an easement or right of way for the flow of his full head of 60 miners inches of water in and through the East Ditch, even though his 80 shares of stock in the canal company evidenced a water right appurtenant to his land of 50 miners inches of water. Ramseyer v. Jamerson, 78 Idaho 504, 305 P.2d 1088 (1957). In general, a party asserting adverse possession under an oral claim of title must prove by clear and satisfactory evidence that he or she has been in possession of the property for the prescriptive period, and that the possession has been actual, open, visible, notorious, continuous, and hostile to the party against whom the claim of adverse possession is made. Shelton v. Boydstun Beach Ass’n, 102 Idaho 818, 641 P.2d 1005 (Ct. App. 1982).

When applied to extinguishment of an easement, the elements of exclusivity and hostility require that the land owner use the property within the easement in a manner wholly inconsistent with enjoyment of the easement. Shelton v. Boydstun Beach Ass’n, 102 Idaho 818, 641 P.2d 1005 (Ct. App. 1982).

Where the evidence showed that the owners of the servient beach premises constructed retaining wall, erected fences around their property, and planted grass and flowers within the easement, the trial court’s finding that the improvements by the servient owners were inconsistent with the express purposes of boating, bathing, driving and parking set forth in the grant of easement was supported by substantial and competent evidence and, thus, permitted the court’s judgment extinguishing that portion of the easement which had been enclosed and improved. Shelton v. Boydstun Beach Ass’n, 102 Idaho 818, 641 P.2d 1005 (Ct. App. 1982).

Nonprofit corporation which supplied water to mobile home park asserted its claim to well lots under adverse possession pursuant to a written claim and/or an oral claim of right. However, the plaintiff’s use of the well lots could have been consistent with use by permission rather than adverse possession. As a result, the trial court erred in granting summary judgment for the corporation. East Lizard Butte Water Corp. v. Howell, 122 Idaho 679, 837 P.2d 805 (1992).

Claimant’s argument that he need only establish adverse possession as against original owner of land in his quiet title action was wholly without merit because action was also filed against “all unknown claimants” and county was an unknown claimant and ownership must, therefore, be proven against the county as against original owner. Cluff v. Bonner County, 126 Idaho 950, 895 P.2d 551 (1995).

Although there was evidence to the contrary, where the district judge was in the best position to determine the credibility of witnesses whose evidence demonstrated a shared maintenance of property, the finding that adverse possession by the plaintiffs was not established was affirmed. Carney v. Heinson, 133 Idaho 275, 985 P.2d 1137 (1999).

Boundary Agreement.

In an action to have title quieted in the plaintiffs and to have a fence located between the parties’ respective residences declared the boundary line, where location of the true boundary was known and where an oral agreement to fix another line as the boundary established only a right of permissive use in the plaintiffs, plaintiffs’ actions of erecting a fence and maintaining and cultivating the lawn, which did not constitute notice of hostile possession since done with the owner’s consent, were insufficient to commence running of the statute of limitations and to establish title through adverse possession. Gameson v. Remer, 96 Idaho 789, 537 P.2d 631 (1975).

Burden of Proof.

Easements.

The burden of showing all of the essential elements of adverse possession is upon the party seeking title thereunder and such claimant must prove every element of adverse possession by clear and satisfactory evidence. Berg v. Fairman, 107 Idaho 441, 690 P.2d 896 (1984). Easements.

Where a purchaser of a right-of-way for a ditch across a tract of land has failed to record its conveyance prior to the record of a subsequent conveyance made in good faith, and in an action to quiet title seeks to recover on the grounds of adverse possession for the statutory period, the extent of the right-of-way or easement must be determined by the facts proven as to the extent of the use and occupation, and can not be determined by the calls of such unrecorded deed. Swank v. Sweetwater Irrigation & Power Co., 15 Idaho 353, 98 P. 297 (1908).

One who has acquired right of way for canal across land of another by adverse user has also acquired right of entry to clean and maintain canal. Gorrie v. Weiser Irrigation Dist., 28 Idaho 248, 153 P. 561 (1915).

Where common driveway thirteen to twenty-one feet in width was maintained within a thirty-foot easement originally granted, improvements constructed by landowners which interfered with the thirty-foot easement were not adverse and party’s right to full width of the easement had not been extinguished because a need to actually utilize the unused portion of the easement had not yet arisen; judgment in favor of party’s right to full width of easement was upheld. Winn v. Eaton, 128 Idaho 670, 917 P.2d 1310 (Ct. App. 1996).

Enclosure.

Enclosure and exclusive possession of disputed land by claimant prevails, even though claimant and true owner are mistaken as to exact lines covered by their deeds. Calkins v. Kousouros, 72 Idaho 150, 237 P.2d 1053 (1951).

Enclosure by fence of strip of land for period of eight years established title by adverse possession, even though owner was away from vicinity for six years, since owner does not have to have notice or knowledge of adverse possession, if possession of claimant is open and notorious under claim of title. Calkins v. Kousouros, 72 Idaho 150, 237 P.2d 1053 (1951) (now 20 year requirement).

Fact that respondents and their predecessors possessed the disputed property by enclosure, exclusive use and payment of taxes constituted adverse possession, although the possession, was authorized by oral agreement. Lisher v. Krasselt, 94 Idaho 513, 492 P.2d 52 (1972).

Evidence.

Evidence by assessor that he assessed land enclosed by fence in name of claimant established payment of taxes on disputed land, even though assessor did not know for sure that land within fence was owned by claimant. Calkins v. Kousouros, 72 Idaho 150, 237 P.2d 1053 (1951).

Finding of trial court that claimant of strip of land by adverse possession had paid all taxes levied and assessed against land was technically incorrect where evidence showed that no taxes were ever levied against the land, but finding was sufficient to cover favorable finding on matter of taxes in favor of claimant. Hogan v. Blakney, 73 Idaho 274, 251 P.2d 209 (1952).

Finding of trial court that possession of party claiming title to strip of land by adverse possession was adverse and hostile was not overcome by evidence that claimant had made some inquiry as to ownership of disputed land at office of assessor. Hogan v. Blakney, 73 Idaho 274, 251 P.2d 209 (1952). Evidence that a driveway was used uninterruptedly and continuously for more than the prescriptive period, would raise a presumption that such use was adverse and under claim of right, especially since there was not sufficient evidence to overcome such presumption; in fact, evidence being given of improvements to the driveway being made, it being surfaced with concrete, which would support the contention that the use was not merely permissive. Sinnett v. Werelus, 83 Idaho 514, 365 P.2d 952 (1961).

Hostile Intent.

Person claiming title to property by adverse possession has the burden of showing that the possession of disputed property was hostile to that of the real owner, and not with the permission of the real owner since occupation without hostile intent does not constitute adverse possession; if the initial entry of the adverse claimant upon the disputed land was with the permission of the record owner, the statute of limitation will not begin to run against the true owner until the adverse claimant establishes exclusive right in himself; and once it has been established that an adverse claimant’s initial entry upon disputed land was with the permission of the record owner, only an unequivocal act by the permissive user brought home to the true owner will start the running of the statute of limitations. Berg v. Fairman, 107 Idaho 441, 690 P.2d 896 (1984).

Where adverse claimant’s predecessors in title to the disputed part of lot were her mother and father and her brother, she was faced with the presumption that their occupation was permissive since they were blood relatives; thus, in action to quiet title in part of lot some unequivocal act indicating occupier’s intent to claim adversely had to be shown to change the character of the use from permissive to adverse. Berg v. Fairman, 107 Idaho 441, 690 P.2d 896 (1984).

Leased Property.

In an action to quiet title based on adverse possession, if those who caused warehouse to be located on the land believed that it was standing on leased property, the act of plaintiff’s predecessors in interest in occupying the land was not an assertion of title in themselves so as to support a claim for adverse possession. Swanson v. State, 83 Idaho 126, 358 P.2d 387 (1960).

Payment of Taxes.

Payment of taxes is not a requirement for claiming a title under either§ 5-207 or§ 5-208; rather, it is a necessary element for a finding of adverse possession under oral claim of title pursuant to this section and§ 5-210. Stout v. Westover, 106 Idaho 533, 681 P.2d 1008 (1984).

Presumption of Permissive Occupation.

When one occupies the land of a blood relative, such occupation is presumptively with the permission of the true owner. Berg v. Fairman, 107 Idaho 441, 690 P.2d 896 (1984).

Running of Statute against State.

Where claimant’s predecessors in title to disputed land were blood relatives she was faced with a presumption of law that the occupation of the disputed strip was permissive and, therefore, it was incumbent upon her to, by affidavit or otherwise, oppose the motion for summary judgment setting forth specific facts that would controvert the presumption of permissive occupation; where the record was devoid of any specific facts controverting the presumption, summary judgment in action to quiet title was proper. Berg v. Fairman, 107 Idaho 441, 690 P.2d 896 (1984). Running of Statute against State.

The statute begins to run against a grantee of the state only from the time when he acquires title, and any occupancy prior to that time will not be deemed adverse and can not be the basis of title by adverse possession. Hellerud v. Hauck, 52 Idaho 226, 13 P.2d 1099 (1932).

Am. Jur. 2d.

C.J.S.

Amendments.

The 2006 amendment, by ch. 158, substituted “twenty (20) years” for “five (5) years” in the last paragraph.

Effective Dates.

Section 3 of S.L. 2001, ch. 290 declared an emergency retroactively to January 1, 2001 and approved April 2, 2001.

2006 Amendment.

Because an adverse possessor does not acquire any interest in the real property adversely possessed until all of the requirements of this section have been met, the adverse possessor does not have a cause of action until that has happened. Thus, claimants, who had held the property at issue for four years and eight months, did not have a cause of action for adverse possession as of the effective date of the 2006 amendment, changing the period of possession from 5 to 20 years.. Since they had no interest in the strip of property and no cause of action for adverse possession of the real property, the amendment did not affect any of their rights. Schoorl v. Lankford, 161 Idaho 628, 389 P.3d 173 (2017).

Acts Constituting Possession.

Evidence that disputed property had been occupied and claimed by respondent for over five years, had been protected by a substantial enclosure maintained by the respondent, had been farmed, leased or otherwise used by the respondent, and that respondent had agreed with deed holder to the other part of the land that a certain part of Trestle Creek should form the boundary line between the respective properties satisfied the statutory requirements set out in this section. Eagan v. Colwell, 86 Idaho 525, 388 P.2d 999 (1964) (now 20 year requirement).

Evidence that owners of land adjoining that in dispute and their predecessors in interest had built and maintained a fence enclosing both tracts since thirty years prior to the deed from said predecessors to the present owners, that both tracts, when assessed, were assessed to said parties, that all taxes paid during said period had been paid by said parties, and that both tracts had been generally regarded by nearby residents as one tract and known by the name of said predecessors, although disputed in part, was sufficient to sustain a decree quieting title in said owners as against the holders of title by an unbroken chain of conveyances beginning with the grantee of the original patent, which holders of title had never been in possession. White v. Boydstun, 91 Idaho 615, 428 P.2d 747 (1967).

Adverse Possession.

Where one claims title to property by adverse possession, it is not necessary that the five years’ continuous, exclusive adverse possession and payment of taxes should have been immediately preceding the commencement of the action or at any special or particular time, but it is sufficient if the party claiming such title can establish any continuous five-year period subsequent to the acquisition of the legal title by the adverse party during which he has complied with the statute in maintaining his open, notorious, continuous adverse possession and payment of taxes for such period. Cramer v. Walker, 23 Idaho 495, 130 P. 1002 (1913) (now 20 year requirement). Essential elements.

2006 Amendment.

Because an adverse possessor does not acquire any interest in the real property adversely possessed until all of the requirements of this section have been met, the adverse possessor does not have a cause of action until that has happened. Thus, claimants, who had held the property at issue for four years and eight months, did not have a cause of action for adverse possession as of the effective date of the 2006 amendment, changing the period of possession from 5 to 20 years.. Since they had no interest in the strip of property and no cause of action for adverse possession of the real property, the amendment did not affect any of their rights. Schoorl v. Lankford, 161 Idaho 628, 389 P.3d 173 (2017).

Acts Constituting Possession.

Evidence that disputed property had been occupied and claimed by respondent for over five years, had been protected by a substantial enclosure maintained by the respondent, had been farmed, leased or otherwise used by the respondent, and that respondent had agreed with deed holder to the other part of the land that a certain part of Trestle Creek should form the boundary line between the respective properties satisfied the statutory requirements set out in this section. Eagan v. Colwell, 86 Idaho 525, 388 P.2d 999 (1964) (now 20 year requirement).

Evidence that owners of land adjoining that in dispute and their predecessors in interest had built and maintained a fence enclosing both tracts since thirty years prior to the deed from said predecessors to the present owners, that both tracts, when assessed, were assessed to said parties, that all taxes paid during said period had been paid by said parties, and that both tracts had been generally regarded by nearby residents as one tract and known by the name of said predecessors, although disputed in part, was sufficient to sustain a decree quieting title in said owners as against the holders of title by an unbroken chain of conveyances beginning with the grantee of the original patent, which holders of title had never been in possession. White v. Boydstun, 91 Idaho 615, 428 P.2d 747 (1967).

Adverse Possession.

Where one claims title to property by adverse possession, it is not necessary that the five years’ continuous, exclusive adverse possession and payment of taxes should have been immediately preceding the commencement of the action or at any special or particular time, but it is sufficient if the party claiming such title can establish any continuous five-year period subsequent to the acquisition of the legal title by the adverse party during which he has complied with the statute in maintaining his open, notorious, continuous adverse possession and payment of taxes for such period. Cramer v. Walker, 23 Idaho 495, 130 P. 1002 (1913) (now 20 year requirement). Mere intention to occupy land, however openly proclaimed, is not possession; intention must be carried into actual execution. Pleasants v. Henry, 36 Idaho 728, 213 P. 565 (1923).

Open and notorious occupation with hostile intent is necessary constituent of adverse possession and neither hostile intent without such occupation, nor such occupation without hostile intent, is sufficient. Pleasants v. Henry, 36 Idaho 728, 213 P. 565 (1923).

Party claiming title by adverse possession through enclosure of disputed property by fence does not admit title of the other by offering to buy disputed property. Calkins v. Kousouros, 72 Idaho 150, 237 P.2d 1053 (1951).

Enclosure by fence of strip of land for period of 8 years established title by adverse possession, even though owner was away from vicinity for six years, since owner does not have to have notice or knowledge of adverse possession, if possession of claimant is open and notorious under claim of title. Calkins v. Kousouros, 72 Idaho 150, 237 P.2d 1053 (1951) (now 20 year requirement).

Finding of trial court that possession of party claiming title to strip of land by adverse possession was adverse and hostile was not overcome by evidence that claimant had made some inquiry as to ownership of disputed land at office of assessor. Hogan v. Blakney, 73 Idaho 274, 251 P.2d 209 (1952).

Adverse possession to real estate can only be sustained by proof of uninterrupted and continuous use for the entire prescriptive period. Hogan v. Blakney, 73 Idaho 274, 251 P.2d 209 (1952).

Claim of adverse possession to strip of land based solely on addition to building constructed by claimant applied only to that portion of the strip of land on which the addition stood and did not apply to balance of the strip of land. Hogan v. Blakney, 73 Idaho 274, 251 P.2d 209 (1952).

Commencement of action by plaintiff to quiet title filed 30 days prior to end of five year period of adverse possession asserted by defendant interrupted the period of defendant’s adverse possession, and the rights of the defendant as against the plaintiff must be determined as of the filing date. Smith v. Long, 76 Idaho 265, 281 P.2d 483 (1955) (now 20 year requirement).

Where there is no proof showing that actual occupation was accompanied by a claim or an intention inconsistent with the title of the owner, an adverse claim based on such occupation cannot be allowed. Swanson v. State, 83 Idaho 126, 358 P.2d 387 (1960).

Under the provisions of this section, protection by substantial enclosure and payment of the taxes are essential to the successful assertion of title to land by adverse possession; however, these requirements do not apply to an easement which is merely appurtenant to the dominant estate and is not taxable separate and apart from it. Sinnett v. Werelus, 83 Idaho 514, 365 P.2d 952 (1961).

Fact that respondents and their predecessors possessed the disputed property by enclosure, exclusive use and payment of taxes constituted adverse possession, although the possession was authorized by oral agreement. Lisher v. Krasselt, 94 Idaho 513, 492 P.2d 52 (1974). Where defendants maintained substantial enclosure around the land claimed by them by adverse possession, but were assessed only on their land and the land was not described by metes and bounds, and where they paid all taxes assessed to them over the years, they met the requirement of payment of taxes precedent to adverse possession claim. Standall v. Teater, 96 Idaho 152, 525 P.2d 347 (1974).

In a suit based on adverse possession under this section, where two property owners owned land on the opposite sides of the Boise River, which gradually changed its course northward, and the southerly land-owners fenced the land up to the northerly channel for 40 to 45 years, and where taxes had been paid on both lots by lot number rather than by acreage, the southerly owners had established their claim, to the land between the two channels, by adverse possession but not by accretion. Nesbitt v. Wolfkiel, 100 Idaho 396, 598 P.2d 1046 (1979).

Where brothers used acre of land as horse breeding business following father’s death in 1962, paid taxes on it and three witnesses testified that they believed brothers were owners of the property, the manner of occupation did not sufficiently “bring home” to sisters, who claimed ownership through inheritance and quitclaim deeds obtained from other relatives, that brothers were claiming ownership through adverse possession, since knowledge of occupation is not knowledge of adverse possession. Tremayne v. Taylor, 101 Idaho 792, 621 P.2d 408 (1980).

In general, a party asserting adverse possession under an oral claim of title must prove by clear and satisfactory evidence that he or she has been in possession of the property for at least five years, and that the possession has been actual, open, visible, notorious, continuous, and hostile to the party against whom the claim of adverse possession is made. Shelton v. Boydstun Beach Ass’n, 102 Idaho 818, 641 P.2d 1005 (Ct. App. 1982) (now 20 year requirement).

When applied to extinguishment of an easement, the elements of exclusivity and hostility require that the land owner use the property within the easement in a manner wholly inconsistent with enjoyment of the easement. Shelton v. Boydstun Beach Ass’n, 102 Idaho 818, 641 P.2d 1005 (Ct. App. 1982).

Where a deputy county assessor testified that taxes on a disputed strip were not assessed to the party seeking adverse possession, rather, the taxes were assessed to the owners of the adjacent property and their predecessors-in-interest, there was no evidence in the record from which the trial court could have found that the party seeking adverse possession actually paid taxes assessed against the disputed property and adverse possession is not available to the party seeking adverse possession. Herrmann v. Woodell, 107 Idaho 916, 693 P.2d 1118 (Ct. App. 1985).

Nonprofit corporation which supplied water to mobile home park asserted its claim to well lots under adverse possession pursuant to a written claim and/or an oral claim of right. However, the plaintiff’s use of the well lots could have been consistent with use by permission rather than adverse possession. As a result, the trial court erred in granting summary judgment for the corporation. East Lizard Butte Water Corp. v. Howell, 122 Idaho 679, 837 P.2d 805 (1992).

Claimant’s argument that he need only establish adverse possession as against original owner of land in his quiet title action was wholly without merit because action was also filed against “all unknown claimants” and county was an unknown claimant and ownership must therefore be proven against the county as against original owner. Cluff v. Bonner County, 126 Idaho 950, 895 P.2d 551 (1995).

Although there was evidence to the contrary, where the district judge was in the best position to determine the credibility of witnesses whose evidence demonstrated a shared maintenance of property, the finding that adverse possession by the plaintiffs was not established was affirmed. Carney v. Heinson, 133 Idaho 275, 985 P.2d 1137 (1999). Where defendants maintained substantial enclosure around the land claimed by them by adverse possession, but were assessed only on their land and the land was not described by metes and bounds, and where they paid all taxes assessed to them over the years, they met the requirement of payment of taxes precedent to adverse possession claim. Standall v. Teater, 96 Idaho 152, 525 P.2d 347 (1974).

In a suit based on adverse possession under this section, where two property owners owned land on the opposite sides of the Boise River, which gradually changed its course northward, and the southerly land-owners fenced the land up to the northerly channel for 40 to 45 years, and where taxes had been paid on both lots by lot number rather than by acreage, the southerly owners had established their claim, to the land between the two channels, by adverse possession but not by accretion. Nesbitt v. Wolfkiel, 100 Idaho 396, 598 P.2d 1046 (1979).

Where brothers used acre of land as horse breeding business following father’s death in 1962, paid taxes on it and three witnesses testified that they believed brothers were owners of the property, the manner of occupation did not sufficiently “bring home” to sisters, who claimed ownership through inheritance and quitclaim deeds obtained from other relatives, that brothers were claiming ownership through adverse possession, since knowledge of occupation is not knowledge of adverse possession. Tremayne v. Taylor, 101 Idaho 792, 621 P.2d 408 (1980).

In general, a party asserting adverse possession under an oral claim of title must prove by clear and satisfactory evidence that he or she has been in possession of the property for at least five years, and that the possession has been actual, open, visible, notorious, continuous, and hostile to the party against whom the claim of adverse possession is made. Shelton v. Boydstun Beach Ass’n, 102 Idaho 818, 641 P.2d 1005 (Ct. App. 1982) (now 20 year requirement).

When applied to extinguishment of an easement, the elements of exclusivity and hostility require that the land owner use the property within the easement in a manner wholly inconsistent with enjoyment of the easement. Shelton v. Boydstun Beach Ass’n, 102 Idaho 818, 641 P.2d 1005 (Ct. App. 1982).

Where a deputy county assessor testified that taxes on a disputed strip were not assessed to the party seeking adverse possession, rather, the taxes were assessed to the owners of the adjacent property and their predecessors-in-interest, there was no evidence in the record from which the trial court could have found that the party seeking adverse possession actually paid taxes assessed against the disputed property and adverse possession is not available to the party seeking adverse possession. Herrmann v. Woodell, 107 Idaho 916, 693 P.2d 1118 (Ct. App. 1985).

Nonprofit corporation which supplied water to mobile home park asserted its claim to well lots under adverse possession pursuant to a written claim and/or an oral claim of right. However, the plaintiff’s use of the well lots could have been consistent with use by permission rather than adverse possession. As a result, the trial court erred in granting summary judgment for the corporation. East Lizard Butte Water Corp. v. Howell, 122 Idaho 679, 837 P.2d 805 (1992).

Claimant’s argument that he need only establish adverse possession as against original owner of land in his quiet title action was wholly without merit because action was also filed against “all unknown claimants” and county was an unknown claimant and ownership must therefore be proven against the county as against original owner. Cluff v. Bonner County, 126 Idaho 950, 895 P.2d 551 (1995).

Although there was evidence to the contrary, where the district judge was in the best position to determine the credibility of witnesses whose evidence demonstrated a shared maintenance of property, the finding that adverse possession by the plaintiffs was not established was affirmed. Carney v. Heinson, 133 Idaho 275, 985 P.2d 1137 (1999). Claimant could not succeed on her adverse possession claim because she presented no evidence that she ever paid property taxes on disputed parcel of land, and, without such evidence, the district court correctly concluded that the claimant had failed to meet the tax payment requirement. Luce v. Marble, 142 Idaho 264, 127 P.3d 167 (2005).

Boundaries.

Where one enters into the possession of a tract of land and maintains a fence, and occupies and uses the land up to the fence for a period of 40 years, with the knowledge and acquiescence of the successive owner of the adjoining land, such occupancy will amount to adverse possession, even though the division fence was erected through mistake as to the true boundary line. Bayhouse v. Urquides, 17 Idaho 286, 105 P. 1066 (1909).

Where a row of trees has constituted a monument between lots of coterminous owners for more than five years, same established true boundary line. Boise Valley Constr. Co. v. Kroeger, 17 Idaho 384, 105 P. 1070 (1909) (now 20 year requirement).

Acquiescence in the maintenance of a line fence for a great length of time may be presumptive evidence of an agreement as to a boundary line, but is not conclusive evidence and will not overcome a positive agreement or understanding that after the true line is established the fence will be made to conform to it. Brown v. Brown, 18 Idaho 345, 110 P. 269 (1910).

Where a fence constitutes a monument between tracts of conterminous owners and such monument establishes the boundary line between the adjoining premises, the requirement of this section as to payment of taxes is satisfied by such payment on the lot within which the disputed tract is enclosed. Mulder v. Stands, 71 Idaho 22, 225 P.2d 463 (1950).

Enclosure and exclusive possession of disputed land by claimant prevails, even though claimant and true owner are mistaken as to exact lines covered by their deeds. Calkins v. Kousouros, 72 Idaho 150, 237 P.2d 1053 (1951).

Where parties for period in excess of statutory time recognized and agreed upon location of boundary line, as defined by erection of fence, a true line was established. Edgeller v. Johnston, 74 Idaho 359, 262 P.2d 1006 (1953).

Evidence was sufficient to establish fence as boundary between adjoining landowners that plaintiffs’ title was not founded upon a written instrument, judgment or decree and that the disputed area had not been protected by a substantial enclosure by plaintiffs or their predecessors. Larson v. Lindsay, 80 Idaho 242, 327 P.2d 775 (1958).

In an action to have title quieted in the plaintiffs and to have a fence located between the parties’ respective residences declared the boundary line, where location of the true boundary was known to the parties and where an oral agreement to fix another line as the boundary established only a right of permissive use in the plaintiffs, plaintiffs’ actions of erecting a fence and maintaining and cultivating the lawn, which did not constitute notice of hostile possession since done with the owner’s consent, were insufficient to commence running of the statute of limitations and to establish title through adverse possession. Gameson v. Remer, 96 Idaho 789, 537 P.2d 631 (1975).

Burden of Proof.

Burden of proving all essential elements of adverse possession is upon party relying upon that title. Pleasants v. Henry, 36 Idaho 728, 213 P. 565 (1923). Plaintiff in quiet title proceeding, who does not claim under judgment, decree, or written instrument, is only required to prove protection of land by a substantial enclosure or cultivation or improvement of land. Edgeller v. Johnston, 74 Idaho 359, 262 P.2d 1006 (1953).

The requirement of this section that land alleged to be adversely possessed be either protected by a substantial enclosure or have been usually cultivated or improved is written in the disjunctive and, thus, plaintiffs need prove only either element. Owen v. Boydstun, 102 Idaho 31, 624 P.2d 413 (1981).

The burden of showing all of the essential elements of adverse possession is upon the party seeking title thereunder, and such claimant must prove every element of adverse possession by clear and satisfactory evidence. Berg v. Fairman, 107 Idaho 441, 690 P.2d 896 (1984).

Delineation of Boundaries.

A natural boundary can mark the confines of property adversely possessed. Lindgren v. Martin, 130 Idaho 854, 949 P.2d 1061 (1997).

Essential Elements.

— Enclosure.

An essential element of adverse possession is that land claimed be protected by a substantial enclosure. Smylie v. Pearsall, 93 Idaho 188, 457 P.2d 427 (1969).

The requirement that the property being adversely claimed be usually cultivated or improved was satisfied by adverse claimant’s improving the property by planting hedgerows, flower gardens, shrubs and trees along the purported boundary line. Hyde v. Lawson, 94 Idaho 886, 499 P.2d 1242 (1972), overruled on other grounds, Nesbitt v. Wolfkiel, 100 Idaho 396, 598 P.2d 1046 (1979).

The maintenance by plaintiff for a period of five years of flowers, trees and shrubs along the purported boundary line and a hedgerow along a portion thereof satisfied the enclosure requirement imposed by this section, because the boundaries of the plaintiff’s adverse occupancy were clearly indicated. Hyde v. Lawson, 94 Idaho 886, 499 P.2d 1242 (1972), overruled on other grounds, Nesbitt v. Wolfkiel, 100 Idaho 396, 598 P.2d 1046 (1979) (now 20 year requirement).

Chain link fence is a “substantial enclosure.” Standall v. Teater, 96 Idaho 152, 525 P.2d 347 (1974).

A barbed wire fence which was shown to be no longer up was insufficient as a “substantial enclosure.” Standall v. Teater, 96 Idaho 152, 525 P.2d 347 (1974).

The construction of a substantial enclosure to protect property claimed under adverse possession by those asserting possession is an element of adverse possession which must be clearly and satisfactorily proven. Loomis v. Union P.R.R., 97 Idaho 341, 544 P.2d 299 (1975).

A fence erected by a neighbor for the purpose of containing livestock or to prevent livestock from entering the neighbor’s property will not suffice to satisfy the enclosure requirement for adverse possession by a claimant adjacent to the neighbor’s property. Capps v. Wood, 117 Idaho 614, 790 P.2d 395 (Ct. App. 1990).

Evidence.

A fence did not constitute a substantial enclosure under subdivision (1) of this section where the fence had not been erected by plaintiff or plaintiff’s grantors and where its purpose never was to enclose any part of plaintiff’s property. Persyn v. Favreau, 119 Idaho 154, 804 P.2d 327 (Ct. App. 1990). Evidence.

One asserting adverse possession as against the owner of real estate must prove each and every element of adverse possession by clear and satisfactory evidence. Swanson v. State, 83 Idaho 126, 358 P.2d 387 (1960); Loomis v. Union P.R.R., 97 Idaho 341, 544 P.2d 299 (1975).

In action to quiet title to a strip of land based on adverse possession where evidence did not show that land had been protected by substantial enclosure or had been cultivated or improved by appellants or their predecessors in interest, such action must fail. Swanson v. State, 83 Idaho 126, 358 P.2d 387 (1960).

Where the owner of a lot conveyed to plaintiff’s grantor the westerly 100 feet of the lot and subsequently conveyed all of said lot “except the westerly 100 ft. thereof” to defendant and the parties paid taxes on their respective tracts according to such descriptions, adverse possession of land between the boundary between the two tracts and a fence some distance to the west of the true boundary was not established in defendant. Fry v. Smith, 91 Idaho 740, 430 P.2d 486 (1967).

Inasmuch as adverse possession must be established by clear and satisfactory evidence, plaintiffs who sought to quiet title to property on basis of adverse possession had not established the requisite hostile possession in light of defendants’ evidence of an oral lease agreement. Aldape v. State, 98 Idaho 912, 575 P.2d 891 (1978).

Where plaintiffs in action to quiet title had used strip of land between their deeded property and lake to gain access to lake, had cleared brush and rocks from the strip, had hauled sand to the beach area and built a simple firepit on the strip, and had constructed a rail fence extending onto the strip to within 12 feet of the high-water line of the lake, the trial court’s finding that neither the improvements made nor the artificial or natural boundaries surrounding the strip sufficiently delineated the area adversely occupied to establish improvements or enclosure as required by this section was not clearly erroneous. Owen v. Boydstun, 102 Idaho 31, 624 P.2d 413 (1981).

Where the evidence showed that the owners of the servient beach premises constructed retaining wall, erected fences around their property and planted grass and flowers within the easement, the trial court’s finding that the improvements by the servient owners were inconsistent with the express purposes of boating, bathing, driving and parking set forth in the grant of easement was supported by substantial and competent evidence and, thus, permitted the court’s judgment extinguishing that portion of the easement which had been enclosed and improved. Shelton v. Boydstun Beach Ass’n, 102 Idaho 818, 641 P.2d 1005 (Ct. App. 1982).

Where, on appeal of a judgment granting quiet title by adverse possession, the evidence produced by the possessor showed that a fence existed, the inference arose from the keeping of animals that such a fence was maintained, and the evidence was corroborated by witnesses who observed in following years fence posts and post holes, the trial court could permissibly rely upon this evidence in finding a fence existed for five or more years, and that the land adversely possessed was enclosed by a fence. Pilcher v. Dattel, 115 Idaho 79, 764 P.2d 446 (Ct. App. 1988) (now 20 year requirement).

Trial court did not err in quieting title in the adjoining parcel owners to a disputed portion of land where the neighbors did not prove the enclosure and cultivation elements of the adverse possession statute by clear and satisfactory evidence. Utter v. Gibbins, 137 Idaho 361, 48 P.3d 1250 (2002).

Homestead Contest.

The pendency of a homestead contest in the land department of the United States does not suspend the running of the statute of limitations. Northern Pac. R.R. v. Pyle, 19 Idaho 3, 112 P. 678 (1910).

Hostile Intent.

Person claiming title to property by adverse possession has the burden of showing that the possession of disputed property was hostile to that of the real owner and not with the permission of the real owner, since occupation without hostile intent does not constitute adverse possession. If the initial entry of the adverse claimant upon the disputed land was with the permission of the record owner, the statute of limitation will not begin to run against the true owner until the adverse claimant establishes exclusive right in himself. Once it has been established that an adverse claimant’s initial entry upon disputed land was with the permission of the record owner, only an unequivocal act by the permissive user brought home to the true owner will start the running of the statute of limitations. Berg v. Fairman, 107 Idaho 441, 690 P.2d 896 (1984).

“Improved” Construed.

The word “improved” in this section means to change or make better or to adapt it more to the purposes for which it is intended than had previously been done and, in case of a mill site used for ordinary mining purposes, it is not necessary that it be either cultivated or enclosed. Trask v. Success Mining Co., 28 Idaho 483, 155 P. 288 (1916).

Clearing brush from fence area believed by plaintiff to be a boundary line, and maintaining the fence, were insufficient to be considered “improvement” as required by subdivision 2 of this section. Persyn v. Favreau, 119 Idaho 154, 804 P.2d 327 (Ct. App. 1990).

Landowner not only placed a mobile home on the land, he also made great efforts to bring the land above the level of the flood plain specifically for the purpose of physical occupation of the land, and brought water service to the land; these were improvements, and the district court’s findings that the disputed land had been improved were supported by the evidence. Wilson v. Gladish, 140 Idaho 861, 103 P.3d 474 (Ct. App. 2004).

Inclosure and Improvement.

The requirements of inclosure and improvement in this section are written in the disjunctive, and it is sufficient to show either a substantial inclosure or cultivation of improvement. Lindgren v. Martin, 130 Idaho 854, 949 P.2d 1061 (1997).

Indicia of Boundaries.

A fence can delineate the boundary of property regardless of the location of the actual boundary when the other elements of adverse possession are present. Lindgren v. Martin, 130 Idaho 854, 949 P.2d 1061 (1997).

Land of Blood Relative.

When one occupies the land of a blood relative, such occupation is presumptively with the permission of the true owner. Berg v. Fairman, 107 Idaho 441, 690 P.2d 896 (1984).

Where claimant’s predecessors in title to disputed land were blood relatives, she was faced with a presumption of law that the occupation of the disputed strip was permissive and, therefore, it was incumbent upon her to, by affidavit or otherwise, oppose the motion for summary judgment setting forth specific facts that would controvert the presumption of permissive occupation; where the record was devoid of any specific facts controverting the presumption, summary judgment in action to quiet title was proper. Berg v. Fairman, 107 Idaho 441, 690 P.2d 896 (1984).

The pendency of a homestead contest in the land department of the United States does not suspend the running of the statute of limitations. Northern Pac. R.R. v. Pyle, 19 Idaho 3, 112 P. 678 (1910).

Hostile Intent.

Person claiming title to property by adverse possession has the burden of showing that the possession of disputed property was hostile to that of the real owner and not with the permission of the real owner, since occupation without hostile intent does not constitute adverse possession. If the initial entry of the adverse claimant upon the disputed land was with the permission of the record owner, the statute of limitation will not begin to run against the true owner until the adverse claimant establishes exclusive right in himself. Once it has been established that an adverse claimant’s initial entry upon disputed land was with the permission of the record owner, only an unequivocal act by the permissive user brought home to the true owner will start the running of the statute of limitations. Berg v. Fairman, 107 Idaho 441, 690 P.2d 896 (1984).

“Improved” Construed.

The word “improved” in this section means to change or make better or to adapt it more to the purposes for which it is intended than had previously been done and, in case of a mill site used for ordinary mining purposes, it is not necessary that it be either cultivated or enclosed. Trask v. Success Mining Co., 28 Idaho 483, 155 P. 288 (1916).

Clearing brush from fence area believed by plaintiff to be a boundary line, and maintaining the fence, were insufficient to be considered “improvement” as required by subdivision 2 of this section. Persyn v. Favreau, 119 Idaho 154, 804 P.2d 327 (Ct. App. 1990).

Landowner not only placed a mobile home on the land, he also made great efforts to bring the land above the level of the flood plain specifically for the purpose of physical occupation of the land, and brought water service to the land; these were improvements, and the district court’s findings that the disputed land had been improved were supported by the evidence. Wilson v. Gladish, 140 Idaho 861, 103 P.3d 474 (Ct. App. 2004).

Inclosure and Improvement.

The requirements of inclosure and improvement in this section are written in the disjunctive, and it is sufficient to show either a substantial inclosure or cultivation of improvement. Lindgren v. Martin, 130 Idaho 854, 949 P.2d 1061 (1997).

Indicia of Boundaries.

A fence can delineate the boundary of property regardless of the location of the actual boundary when the other elements of adverse possession are present. Lindgren v. Martin, 130 Idaho 854, 949 P.2d 1061 (1997).

Land of Blood Relative.

When one occupies the land of a blood relative, such occupation is presumptively with the permission of the true owner. Berg v. Fairman, 107 Idaho 441, 690 P.2d 896 (1984).

Lot Number Exception.

Where claimant’s predecessors in title to disputed land were blood relatives, she was faced with a presumption of law that the occupation of the disputed strip was permissive and, therefore, it was incumbent upon her to, by affidavit or otherwise, oppose the motion for summary judgment setting forth specific facts that would controvert the presumption of permissive occupation; where the record was devoid of any specific facts controverting the presumption, summary judgment in action to quiet title was proper. Berg v. Fairman, 107 Idaho 441, 690 P.2d 896 (1984). Lot Number Exception.

Summary judgment quieting title in favor of the claimant was affirmed because the lot number exception to this section applied to the claimant’s cause where his property was described by a lot number for tax purposes, and the claimant provided evidence he paid taxes on his lot from 1996 to 2001; the neighbor did not demonstrate that the county assessor assessed taxes on the neighbor’s farm according to a metes and bounds description, but, instead, the assessor used a government survey description from which the precise quantity of land being assessed could not be determined. Roark v. Bentley, 139 Idaho 793, 86 P.3d 507 (2004).

Need to Use.

Where an easement has been created, but no occasion has arisen for its use, the owner of the servient tenement may plant trees, erect a fence, etc., and such use will not be deemed to be adverse, until the need to use the easement arises. Kolouch v. Kramer, 120 Idaho 65, 813 P.2d 876 (1991).

Where common driveway thirteen to twenty-one feet in width was maintained within a thirty-foot easement originally granted, improvements constructed by landowners which interfered with the thirty-foot easement were not adverse and party’s right to full width of the easement had not been extinguished because a need to actually utilize the unused portion of the easement had not yet arisen; judgment in favor of party’s right to full width of easement was upheld. Winn v. Eaton, 128 Idaho 670, 917 P.2d 1310 (Ct. App. 1996).

Payment of Taxes.

One who fails to pay the taxes on land and informs the assessor that the land belongs to another does not acquire a title by adverse possession. Green v. Christie, 4 Idaho 438, 40 P. 54 (1895).

Payment of taxes must be shown in order to establish title by adverse possession. Brose v. Boise City Ry. & Term. Co., 5 Idaho 694, 51 P. 753 (1897); Blayden v. Morris, 37 Idaho 37, 214 P. 1039 (1923), overruled on other grounds, Scott v. Gubler, 95 Idaho 441, 511 P.2d 262 (1973).

Adverse possession cannot be established unless it is shown that the land has been occupied and claimed for five years continuously, and the claimant or his predecessors have paid all taxes levied upon such land or that the property was exempt from taxation or has never been assessed. Swank v. Sweetwater Irrigation & Power Co., 15 Idaho 353, 98 P. 297 (1908); Dickerson v. Hansen, 32 Idaho 18, 177 P. 760 (1918) (now 20 year requirement).

Payment of all state, county and municipal taxes levied and assessed on land for period of five years is indispensable requirement of statute to establish title by adverse possession. Citizens Right of Way Co. v. Ayers, 32 Idaho 206, 179 P. 954 (1919); Meyer v. Schoeffler, 39 Idaho 500, 227 P. 1061 (1924) (now 20 year requirement).

Claimant holding land by adverse possession need only pay taxes levied and assessed, and where no taxes were levied or assessed on land during a period of eight years in which the claimant held the land under color of title, he could not be divested of his title by adverse possession by a claim that he had not met the requirements of the statutes on adverse possession of paying taxes levied and assessed on the land. Stickel v. Carter, 63 Idaho 78, 117 P.2d 477 (1941) (now 20 year requirement). Evidence by assessor that he assessed land enclosed by fence in name of claimant established payment of taxes on disputed land, even though assessor did not know for sure that land within fence was owned by claimant. Calkins v. Kousouros, 72 Idaho 150, 237 P.2d 1053 (1951).

Finding of trial court that claimant of strip of land by adverse possession had paid all taxes levied and assessed against land was technically incorrect where evidence showed that no taxes were ever levied against the land, but finding was sufficient to cover favorable finding on matter of taxes in favor of claimant. Hogan v. Blakney, 73 Idaho 274, 251 P.2d 209 (1952).

Daughter of holder of tax title was not entitled to premises based on claim of adverse possession as against original property owner where there was evidence that taxes were paid and possession was claimed under, by, or for holder of tax title. Salvis v. Lawyer, 73 Idaho 469, 253 P.2d 589 (1953).

If there is an established boundary line between tracts occupied by parties, the payment of taxes by the parties is a payment as to the land actually in possession of the respective parties. Edgeller v. Johnston, 74 Idaho 359, 262 P.2d 1006 (1953).

Payment of taxes by parties to quiet title proceeding on their properties as described by the tax rolls constituted payment of taxes on their properties up to the established boundary line between their properties. Beneficial Life Ins. Co. v. Wakamatsu, 75 Idaho 232, 270 P.2d 830 (1954).

The fact that appellants did not nor did their predecessors pay taxes and assessments levied against properties involved would defeat their cause of action seeking to establish fence as boundary of their and adjoining landowners’ property. Larson v. Lindsay, 80 Idaho 242, 327 P.2d 775 (1958).

The defendants did not establish adverse possession in a suit to quiet title when they offered no evidence that they had paid the taxes on the property in dispute during the period of limitations. Dickerson v. Brewster, 88 Idaho 330, 399 P.2d 407 (1965).

A village cannot claim title by adverse possession to land on which it has levied and collected taxes from the record owner during the period of asserted possession. Hamilton v. McCall, 90 Idaho 253, 409 P.2d 393 (1965).

Since, according to the tax collection procedures followed in this state, the counties act as a collecting agency in the collection of taxes for the state and municipality, payment of property taxes to the county rather than the state itself was sufficient to establish payment of taxes as required to sustain a claim pursuant to this section. Rutledge v. State, 94 Idaho 121, 482 P.2d 515 (1971).

The requirement of the payment of taxes is met where the person adversely occupying land which is situated between property owned by him and the property owned by his opponent has paid the required taxes on the property owned by him, because payment of taxes assessed on property deeded to adverse claimant is deemed payment of taxes on the lands in his possession. Hyde v. Lawson, 94 Idaho 886, 499 P.2d 1242 (1972), overruled on other grounds, Nesbitt v. Wolfkiel, 100 Idaho 396, 598 P.2d 1046 (1979).

Where plaintiff, in erecting division fence, enclosed part of adjoining lot, payment of taxes on plaintiff’s lot met requirements for adverse possession. Scott v. Gubler, 95 Idaho 441, 511 P.2d 258 (1973). Where taxes were assessed by lot number rather than by metes and bounds description payment of taxes on the lot within which disputed property is enclosed satisfied the tax payment requirement of this section. Scott v. Gubler, 95 Idaho 441, 511 P.2d 258 (1973).

In a quiet title action, where plaintiff had erected a fence which encroached about 60 feet onto adjacent lot and where plaintiff improved the overlapping strip by planting a lawn and trees and installing a septic tank, plaintiff’s payment of all taxes assessed upon the amount of land he claimed for a period longer than five years satisfied the requirements of this section for title by adverse possession, even though the tax assessment sheets did not particularly describe the land being taxed. Flynn v. Allison, 97 Idaho 618, 549 P.2d 1065 (1976) (now 20 year requirement).

Where the record established that no taxes had been levied or assessed against disputed property, the payment of taxes, as one of the prerequisites to adverse possession under this section, was not an issue and need not have been shown. Owen v. Boydstun, 102 Idaho 31, 624 P.2d 413 (1981).

When both the record owner and the adverse possessor have paid taxes on the same parcel of land during the period of adverse possession, the adverse possessor prevails; accordingly, where a county tax plat erroneously showed the northern edge of a street, rather than its center line, as the southern border of the plaintiff adverse possessors’ property thereby shifting plaintiffs’ property, for assessment purposes, 25 feet to the north of its actual location as described by metes and bounds with the result that both the plaintiffs and the record owner of the property to the north were paying taxes on the 25-foot strip of land, the plaintiffs were entitled to the 25-foot parcel. Trappett v. Davis, 102 Idaho 527, 633 P.2d 592 (1981).

When both the record owner and the adverse occupant have paid taxes on the subject parcel during the alleged period of adverse possession, the adverse occupant prevails. Gage v. Davis, 104 Idaho 48, 655 P.2d 942 (Ct. App. 1982).

A party claiming legal title on an adverse possession theory must establish that he or she has paid all the taxes levied and assessed on the property for the five-year statutory period. Oakley Valley Stone, Inc. v. Alastra, 110 Idaho 265, 715 P.2d 935 (1985) (now 20 year requirement).

Where testimony concerning payment of taxes was uncontradicted, it was sufficient to show compliance with the statutory requirements of this section. DeChambeau v. Estate of Smith, 132 Idaho 568, 976 P.2d 922 (1999).

Adverse possessor’s good faith act of paying taxes on disputed land should be given effect and the exception was that, under an oral claim of title, an adverse possessor who occupied the same quantity of land as that to which he held title, and who paid taxes on that amount of land, would be deemed to have paid taxes on that land; there was no reason why this exception would require the adverse possessor to be in possession in any part of his deeded land. Wilson v. Gladish, 140 Idaho 861, 103 P.3d 474 (Ct. App. 2004).

Landowner claimed 0.66 acres of property and was assessed on 0.66 acres of property, and the assessment failed to particularly describe the land being taxed such that it could be identified; therefore, the landowner met the tax payment requirement of this section, where the assessment was made following a viewing of the disputed property, and the assessment described the property being taxed by a generic description which indicated the quantity of property being taxed, but not the specific property itself. Wilson v. Gladish, 140 Idaho 861, 103 P.3d 474 (Ct. App. 2004).

Where county’s assessment methodology made it impossible to produce conclusive evidence that an adverse claimant had paid taxes on a disputed parcel of land, title cannot be quieted in the claimant. Kennedy v. Schneider, 151 Idaho 440, 259 P.3d 586 (2011). Where taxes were assessed by lot number rather than by metes and bounds description payment of taxes on the lot within which disputed property is enclosed satisfied the tax payment requirement of this section. Scott v. Gubler, 95 Idaho 441, 511 P.2d 258 (1973).

In a quiet title action, where plaintiff had erected a fence which encroached about 60 feet onto adjacent lot and where plaintiff improved the overlapping strip by planting a lawn and trees and installing a septic tank, plaintiff’s payment of all taxes assessed upon the amount of land he claimed for a period longer than five years satisfied the requirements of this section for title by adverse possession, even though the tax assessment sheets did not particularly describe the land being taxed. Flynn v. Allison, 97 Idaho 618, 549 P.2d 1065 (1976) (now 20 year requirement).

Where the record established that no taxes had been levied or assessed against disputed property, the payment of taxes, as one of the prerequisites to adverse possession under this section, was not an issue and need not have been shown. Owen v. Boydstun, 102 Idaho 31, 624 P.2d 413 (1981).

When both the record owner and the adverse possessor have paid taxes on the same parcel of land during the period of adverse possession, the adverse possessor prevails; accordingly, where a county tax plat erroneously showed the northern edge of a street, rather than its center line, as the southern border of the plaintiff adverse possessors’ property thereby shifting plaintiffs’ property, for assessment purposes, 25 feet to the north of its actual location as described by metes and bounds with the result that both the plaintiffs and the record owner of the property to the north were paying taxes on the 25-foot strip of land, the plaintiffs were entitled to the 25-foot parcel. Trappett v. Davis, 102 Idaho 527, 633 P.2d 592 (1981).

When both the record owner and the adverse occupant have paid taxes on the subject parcel during the alleged period of adverse possession, the adverse occupant prevails. Gage v. Davis, 104 Idaho 48, 655 P.2d 942 (Ct. App. 1982).

A party claiming legal title on an adverse possession theory must establish that he or she has paid all the taxes levied and assessed on the property for the five-year statutory period. Oakley Valley Stone, Inc. v. Alastra, 110 Idaho 265, 715 P.2d 935 (1985) (now 20 year requirement).

Where testimony concerning payment of taxes was uncontradicted, it was sufficient to show compliance with the statutory requirements of this section. DeChambeau v. Estate of Smith, 132 Idaho 568, 976 P.2d 922 (1999).

Adverse possessor’s good faith act of paying taxes on disputed land should be given effect and the exception was that, under an oral claim of title, an adverse possessor who occupied the same quantity of land as that to which he held title, and who paid taxes on that amount of land, would be deemed to have paid taxes on that land; there was no reason why this exception would require the adverse possessor to be in possession in any part of his deeded land. Wilson v. Gladish, 140 Idaho 861, 103 P.3d 474 (Ct. App. 2004).

Landowner claimed 0.66 acres of property and was assessed on 0.66 acres of property, and the assessment failed to particularly describe the land being taxed such that it could be identified; therefore, the landowner met the tax payment requirement of this section, where the assessment was made following a viewing of the disputed property, and the assessment described the property being taxed by a generic description which indicated the quantity of property being taxed, but not the specific property itself. Wilson v. Gladish, 140 Idaho 861, 103 P.3d 474 (Ct. App. 2004).

Pleadings and Findings.

Where county’s assessment methodology made it impossible to produce conclusive evidence that an adverse claimant had paid taxes on a disputed parcel of land, title cannot be quieted in the claimant. Kennedy v. Schneider, 151 Idaho 440, 259 P.3d 586 (2011). Pleadings and Findings.

In action to quiet title under claim of adverse possession and allegation of payment of taxes, there must be finding as to this issue as it affects judgment. Erickson v. Winegar, 41 Idaho 1, 236 P. 870 (1925).

Sufficiency of Complaint.

Complaint to quiet title which alleged in ordinary and concise language the necessary ultimate facts of ownership, possession, payment of taxes and adverse claim was sufficient to withstand a demurrer. Edgeller v. Johnston, 74 Idaho 359, 262 P.2d 1006 (1953).

Time Necessary To Establish.

In action to enjoin trespass on real estate and recover damages where affirmative defense of right of way by prescriptive easement was raised and defendants made no claim in fee to the road across plaintiff’s land but claimed easement over, upon, and across property admittedly owned in fee by plaintiff, the period of time necessary to establish the prescriptive right was not measured by§ 5-209 and this section but by§ 5-203. Deer Creek, Inc. v. Hibbard, 94 Idaho 533, 493 P.2d 392 (1972).

Water Locations.

Lawful location or appropriation of water based on adverse possession for the statutory period will bar the true owner from asserting or defending his right to it, though such possession may rest on an original trespass. Hall v. Taylor, 57 Idaho 662, 67 P.2d 901 (1937).

Although there is a presumption that a change in location of a river channel was by accretion rather than avulsion, because the evidence showed that the river literally cut a new channel to the north over approximately a 50-year period, the presumption of accretion was overcome. Nesbitt v. Wolfkiel, 100 Idaho 396, 598 P.2d 1046 (1979).

Am. Jur. 2d.

C.J.S.

ALR.

§ 5-211. Possession of tenant — Presumptions.

When the relation of landlord and tenant has existed between any persons, the possession of the tenant is deemed the possession of the landlord until the expiration of twenty (20) years from the termination of the tenancy, or, where there has been no written lease, until the expiration of twenty (20) years from the time of the last payment of rent, notwithstanding that such tenant may have acquired another title, or may have claimed to hold adversely to his landlord. But such presumptions cannot be made after the periods herein limited.

History.

C.C.P. 1881, § 151; R.S., R.C., & C.L., § 4044; C.S., § 6604; I.C.A.,§ 5-211; am. 2006, ch. 158, § 6, p. 474.

Amendments.

The 2006 amendment, by ch. 158, substituted “twenty (20) years” for “five (5) years.”

Adverse Possession.

Where one was in possession of land as a tenant, he could not hold adversely to his landlord. Cusic v. Givens, 70 Idaho 229, 215 P.2d 297 (1950), overruled on other grounds, Cardenas v. Kurpjuweit, 116 Idaho 739, 779 P.2d 414 (1989).

Executory Contract for Sale of Land.

Where an executory contract for the sale of land provided that, in case of default, every person claiming under purchaser should be vendor’s tenant, possession of purchaser’s assignee did not become adverse to vendor until he surrendered the possession to which he was entitled under the contract as vendor’s tenant. White v. Garrett, 49 Idaho 136, 286 P. 362 (1930).

Am. Jur. 2d.

C.J.S.

Am. Jur. 2d.

C.J.S.

Cross References.

Actions other than for recovery of real property, disability of persons,§ 5-230.

Coexisting disabilities, effect,§ 5-236.

Disability must exist when right of action accrued,§ 5-235.

Amendments.

The 2006 amendment, by ch. 158, substituted “twenty (20) years” for “five (5) years” in the last paragraph.

Commencement of Statutory Period.

Statute of limitations for recovery of real estate by minor does not start to run until after minor reaches majority. Chapin v. Stewart, 71 Idaho 306, 230 P.2d 998 (1951).

Foreclosure.

This section does not apply to toll the statutory right of redemption of real property foreclosed upon while debtor is incompetent. Southern Idaho Prod. Credit Ass’n v. Ruiz, 105 Idaho 140, 666 P.2d 1151 (1983).

Minors.

Title by adverse possession can not be acquired against minors during minority. Harris v. McCrary, 17 Idaho 300, 105 P. 558 (1909).

Where co-tenant acquired real estate from other tenants after closing of estate, claim of minor heirs of one of the tenants to real estate was barred where claim was not asserted until 22 years after youngest minor reached majority. Chapin v. Stewart, 71 Idaho 306, 230 P.2d 998 (1951).

Property Held by Trustee.

Where the title claimed by minors was held for them by a trustee, the right of action against one in adverse possession was in the trustee and not in the beneficiaries and the running of the statute was not tolled during the minority of such beneficiaries. Jones v. State, 91 Idaho 823, 432 P.2d 420 (1967).

Am. Jur. 2d.

C.J.S.

ALR.

§ 5-214. Actions other than for recovery of real property.

The periods prescribed for the commencement of actions other than for the recovery of real property are as follows.

History.

C.C.P. 1881, § 154; R.S., R.C., & C.L., § 4050; C.S., § 6607; I.C.A.,§ 5-214.

Cross References.

Annulment of marriage,§ 32-502.

Conservator of estate of persons under disability, bond,§ 15-5-411.

Divorce,§ 32-615.

Livestock, action against railroad for killing,§ 62-408.

Pleading the statute of limitations, Idaho R. Civ. P. 9(h).

Burden of Proof.

Statute of limitations is affirmative defense which imposes burden upon one asserting it of proving every element necessary to establish it. Johnston v. Keefer, 48 Idaho 42, 280 P. 324 (1929).

Commencement of Statutory Period.

Where a contract contains an acceleration clause, positive in its terms and without optional features, a default under said clause renders the entire indebtedness due and the statute runs from such default. Canadian Birkbeck Inv. & Sav. Co. v. Williamson, 32 Idaho 624, 186 P. 916 (1920); Perkins v. Swain, 35 Idaho 485, 207 P. 585 (1922).

In action to recover purchase price of stock, cause of action ordinarily accrues only upon demand. Johnston v. Keefer, 48 Idaho 42, 280 P. 324 (1929).

Where no time is fixed for demand, it will be presumed to have been made in reasonable time or at expiration of period within which statute would have run from its date, and statute is then set in motion. Johnston v. Keefer, 48 Idaho 42, 280 P. 324 (1929).

Where no time is specified for doing of act, other than payment of money, it is rule of law that demand for performance is necessary in order to put promisor in default. Johnston v. Keefer, 48 Idaho 42, 280 P. 324 (1929). «Title 5»«Ch. 2»«§ 5-214»

Cross References.

Annulment of marriage,§ 32-502.

Conservator of estate of persons under disability, bond,§ 15-5-411.

Divorce,§ 32-615.

Livestock, action against railroad for killing,§ 62-408.

Pleading the statute of limitations, Idaho R. Civ. P. 9(h).

Burden of Proof.

Statute of limitations is affirmative defense which imposes burden upon one asserting it of proving every element necessary to establish it. Johnston v. Keefer, 48 Idaho 42, 280 P. 324 (1929).

Commencement of Statutory Period.

Where a contract contains an acceleration clause, positive in its terms and without optional features, a default under said clause renders the entire indebtedness due and the statute runs from such default. Canadian Birkbeck Inv. & Sav. Co. v. Williamson, 32 Idaho 624, 186 P. 916 (1920); Perkins v. Swain, 35 Idaho 485, 207 P. 585 (1922).

In action to recover purchase price of stock, cause of action ordinarily accrues only upon demand. Johnston v. Keefer, 48 Idaho 42, 280 P. 324 (1929).

Where no time is fixed for demand, it will be presumed to have been made in reasonable time or at expiration of period within which statute would have run from its date, and statute is then set in motion. Johnston v. Keefer, 48 Idaho 42, 280 P. 324 (1929).

Where no time is specified for doing of act, other than payment of money, it is rule of law that demand for performance is necessary in order to put promisor in default. Johnston v. Keefer, 48 Idaho 42, 280 P. 324 (1929). In malpractice action, summary judgment based upon statute of limitations was upheld because plaintiff failed to establish a triable issue of material fact respecting fraudulent concealment of bullet in the body, where plaintiff’s sole affidavit contained no reference to the time when the bullet was discovered but a general statement that it was discovered within two years, no time as to feeling of pain was specific, surgeon who found bullet was not identified and no discussion of particulars as to alleged misleading by surgeon was given. Johnson v. Gorton, 94 Idaho 595, 495 P.2d 1 (1972).

Cross-Complaint.

In an action by a surety company on a bond of a bank securing repayment of a city’s deposits of public funds, for amount allegedly paid in excess of surety’s pro rata share of amount due city, cross-complaint alleging that, through mistake and belief that the penal sum of the bond had been validly reduced, the receiver of the bank made payment in excess of the pro rata share chargeable to the bonds pledged by the bank to secure repayment of deposits, was barred by three-year limitations on actions for relief on the ground of mistake, where cross-complaint was filed Sept. 17, 1937, and the last payment by the receiver was made June 4, 1934, and receiver’s letter of Dec. 12, 1932, showed that he was familiar with the facts constituting the invalid effort to reduce the penal sum of the bond. Commercial Cas. Ins. Co. v. Boise City Nat’l Bank, 61 Idaho 124, 98 P.2d 637 (1940).

In an action by a surety upon a bond of a bank securing repayment of a city’s deposits of public funds for amount allegedly paid in excess of surety’s pro rata share of amount due city, three-year limitation on action on liability created by statute other than penalty or forfeiture, was inapplicable to a cross-complaint for amount allegedly paid by the receiver of the bank, in excess of the pro rata share chargeable to bonds pledged by bank to secure repayment of deposits. Commercial Cas. Ins. Co. v. Boise City Nat’l Bank, 61 Idaho 124, 98 P.2d 637 (1940).

Malpractice Action.

Fraudulent concealment does toll the statute of limitations in a malpractice action until the plaintiff discovers or should have discovered the injury resulting from negligent treatment. Johnson v. Gorton, 94 Idaho 595, 495 P.2d 1 (1972).

Suits for Services.

In suit for services rendered over a period of years, statute begins running at the end of the service. Hubbard v. Ball, 59 Idaho 78, 81 P.2d 73 (1938).

Unconstitutional Laws.

Acquiescence in an unconstitutional statute, for many years, will not render it valid; lapse of time, however long, will not operate to validate an invalid law, and the statute of limitations cannot be invoked to defeat the right to question an unconstitutional statute. Continental Oil Co. v. City of Twin Falls, 49 Idaho 89, 286 P. 353 (1930).

Cross-Complaint.

In an action by a surety company on a bond of a bank securing repayment of a city’s deposits of public funds, for amount allegedly paid in excess of surety’s pro rata share of amount due city, cross-complaint alleging that, through mistake and belief that the penal sum of the bond had been validly reduced, the receiver of the bank made payment in excess of the pro rata share chargeable to the bonds pledged by the bank to secure repayment of deposits, was barred by three-year limitations on actions for relief on the ground of mistake, where cross-complaint was filed Sept. 17, 1937, and the last payment by the receiver was made June 4, 1934, and receiver’s letter of Dec. 12, 1932, showed that he was familiar with the facts constituting the invalid effort to reduce the penal sum of the bond. Commercial Cas. Ins. Co. v. Boise City Nat’l Bank, 61 Idaho 124, 98 P.2d 637 (1940).

In an action by a surety upon a bond of a bank securing repayment of a city’s deposits of public funds for amount allegedly paid in excess of surety’s pro rata share of amount due city, three-year limitation on action on liability created by statute other than penalty or forfeiture, was inapplicable to a cross-complaint for amount allegedly paid by the receiver of the bank, in excess of the pro rata share chargeable to bonds pledged by bank to secure repayment of deposits. Commercial Cas. Ins. Co. v. Boise City Nat’l Bank, 61 Idaho 124, 98 P.2d 637 (1940).

Malpractice Action.

Fraudulent concealment does toll the statute of limitations in a malpractice action until the plaintiff discovers or should have discovered the injury resulting from negligent treatment. Johnson v. Gorton, 94 Idaho 595, 495 P.2d 1 (1972).

Suits for Services.

In suit for services rendered over a period of years, statute begins running at the end of the service. Hubbard v. Ball, 59 Idaho 78, 81 P.2d 73 (1938).

Unconstitutional Laws.

Acquiescence in an unconstitutional statute, for many years, will not render it valid; lapse of time, however long, will not operate to validate an invalid law, and the statute of limitations cannot be invoked to defeat the right to question an unconstitutional statute. Continental Oil Co. v. City of Twin Falls, 49 Idaho 89, 286 P. 353 (1930).

Compiler’s Notes.

Section 2 of S.L. 1951, ch. 254, p. 553, provided: “If the said period of five years has expired, or will expire before September 1, 1951, the holder or owner of the obligation or indebtedness secured by such mortgage or lien shall have until September 1, 1951, within which to file for record, in the county or counties where said mortgage or lien is recorded, such agreement or affidavit of extension as heretofore provided.”

Effective Dates.

Section 3 of S.L. 1951, ch. 254 declared an emergency. Approved March 20, 1951.

Action Not Barred.

In action on promissory note secured by mortgage on real property to guaranty payment of trade acceptance agreement, where the suit was filed within five years of the date on which default on the first trade acceptance occurred, the statute of limitations did not bar foreclosure of the mortgage. Gebrueder Heidemann, K.G. v. A.M.R. Corp., 107 Idaho 275, 688 P.2d 1180 (1984).

Action on the farm’s mortgage was not time-barred where the farm had bargained away its limitations defense by acknowledging that it had a continued obligation under the promissory note; the farm was well aware that the debt was still owed to the property owners and in consideration for the extension of time for repayment on the promissory notes. Elliott v. Darwin Neibaur Farms, 138 Idaho 774, 69 P.3d 1035, cert. denied, 540 U.S. 1004, 124 S. Ct. 535, 157 L. Ed. 2d 410 (2003). «Title 5»«Ch. 2»«§ 5-214A»

Compiler’s Notes.

Section 2 of S.L. 1951, ch. 254, p. 553, provided: “If the said period of five years has expired, or will expire before September 1, 1951, the holder or owner of the obligation or indebtedness secured by such mortgage or lien shall have until September 1, 1951, within which to file for record, in the county or counties where said mortgage or lien is recorded, such agreement or affidavit of extension as heretofore provided.”

Effective Dates.

Section 3 of S.L. 1951, ch. 254 declared an emergency. Approved March 20, 1951.

Action Not Barred.

In action on promissory note secured by mortgage on real property to guaranty payment of trade acceptance agreement, where the suit was filed within five years of the date on which default on the first trade acceptance occurred, the statute of limitations did not bar foreclosure of the mortgage. Gebrueder Heidemann, K.G. v. A.M.R. Corp., 107 Idaho 275, 688 P.2d 1180 (1984).

Bankruptcy.

Action on the farm’s mortgage was not time-barred where the farm had bargained away its limitations defense by acknowledging that it had a continued obligation under the promissory note; the farm was well aware that the debt was still owed to the property owners and in consideration for the extension of time for repayment on the promissory notes. Elliott v. Darwin Neibaur Farms, 138 Idaho 774, 69 P.3d 1035, cert. denied, 540 U.S. 1004, 124 S. Ct. 535, 157 L. Ed. 2d 410 (2003). Bankruptcy.

Although Idaho’s statute of limitations for foreclosure of a deed of trust had lapsed, this did not allow the Chapter 7 Trustee to avoid the lien under 11 U.S.C.S. § 544(a). Under Idaho law, in order for a bona fide purchaser to prevail against the beneficiary under a deed of trust, that purchaser must first record its instrument of conveyance; the trustee was not such a purchaser. Rainsdon v. Mullen (In re Mullen), 402 B.R. 353 (Bankr. D. Idaho 2008).

Commencement of Statutory Period.

Where the promissory note expressly stated that the maturity date was March 1, 2047, and there was no provision in the note providing that the maturity date would change if the amounts owing under the note were declared to be immediately due and payable because of a default, the five-year statute of limitations for foreclosure would not begin to run until March 1, 2047, not on the 2008 date of default. Kempton-Baughman v. Wells Fargo Bank, N.A., 162 Idaho 174, 395 P.3d 393 (2017).

Acceleration of the debt, caused by a default in payment by the lendee, does not change the maturity date of the loan, and trigger the start of the statute of limitations period, unless there is a provision in the promissory note which alters the stated maturity date in the event of acceleration. CMJ Props. v. JP Morgan Chase Bank, N.A., 162 Idaho 861, 406 P.3d 873 (2017).

Where the beneficiaries received, on November 8, 2012, a partial payment on a trust deed note with an original maturity date of June 28, 2006, and applied that payment to the debt, that partial payment restarted the five-year statute of limitation on any action on the note. Monitor Fin., L.C. v. Wildfire Ridge Estates, LLC, 164 Idaho 555, 433 P.3d 183 (2019).

Federal Sovereign Immunity.

Federal sovereign immunity exempts the United States from state statutes of limitation, and, therefore, it was improper for the trial court to dismiss the United States’ foreclosure action based on this section. Johnson v. United States, 127 Idaho 384, 901 P.2d 491 (1991).

Immediacy.

Neither§ 6-101 nor§ 6-108 requires a mortgagee to bring a foreclosure action immediately after a default; this section permits an action for the foreclosure of a real estate mortgage to be brought within five years of the date of maturity. Isaak v. Idaho First Nat’l Bank, 119 Idaho 907, 811 P.2d 832 (1991).

Maturity Date.

Determination of the maturity date of a debt requires a legal conclusion based upon the terms of the debt instrument. CMJ Props. v. JP Morgan Chase Bank, N.A., 162 Idaho 861, 406 P.3d 873 (2017).

Cross References.

Time for execution limited to ten years,§ 11-101; but may be extended by leave or judgment,§ 11-105.

Amendments.

The 2015 amendment, by ch. 278, substituted “eleven (11) years” for “six (6) years” at the end of the introductory paragraph.

Effective Dates.

Section 6 of S.L. 2015, ch. 278, provided that the act should take effect on and after July 1, 2015, and shall apply only to judgments issued on and after July 1, 2015, by a court of competent jurisdiction.

Action on Judgment.

A cause of action on a judgment against a corporation which has forfeited its charter, for failure to pay its annual license tax, is not created by statute and is not barred in three years, as provided in§ 5-218; rather, this section applies and action on judgment against trustees of defunct corporation is barred by this section in six [now 11] years. Caxton Printers v. Ulen, 59 Idaho 688, 86 P.2d 468 (1939). «Title 5»«Ch. 2»«§ 5-215»

Cross References.

Time for execution limited to ten years,§ 11-101; but may be extended by leave or judgment,§ 11-105.

Amendments.

The 2015 amendment, by ch. 278, substituted “eleven (11) years” for “six (6) years” at the end of the introductory paragraph.

Effective Dates.

Section 6 of S.L. 2015, ch. 278, provided that the act should take effect on and after July 1, 2015, and shall apply only to judgments issued on and after July 1, 2015, by a court of competent jurisdiction.

Action on Judgment.

Child Support Judgment.

A cause of action on a judgment against a corporation which has forfeited its charter, for failure to pay its annual license tax, is not created by statute and is not barred in three years, as provided in§ 5-218; rather, this section applies and action on judgment against trustees of defunct corporation is barred by this section in six [now 11] years. Caxton Printers v. Ulen, 59 Idaho 688, 86 P.2d 468 (1939). Child Support Judgment.

In a case for child support arrearages stemming back to 1979,§ 5-245 and this section were correctly applied to allow the mother to collect all arrearages from the enactment of§ 5-245 in 1988 forward, as well as arrearages which had accrued within six [now 11] years from the 1988 enactment of§ 5-245. Stonecipher v. Stonecipher, 131 Idaho 731, 963 P.2d 1168 (1998).

Exclusion of Lands from Irrigation District.

In a proceeding to exclude land from an irrigation district, the petition alleging that the petitioner was successor in interest to one whose land had previously been decreed to be excluded from irrigation district, which wrongfully levied and collected assessments on such lands, was not demurrable on the ground that the petitioner had no legal capacity to sue, that the action was barred by the statute of limitations and by laches of petitioner. Nielson v. Board of Directors, 63 Idaho 108, 117 P.2d 472 (1931).

Foreign Actions.

Because an action which arose in Canada was not time barred in Canada when original or amended pleadings were filed in Idaho, the provisions of§ 5-239 were not applicable and Idaho’s limitation period applied. Attorney Gen. ex rel. Her Majesty the Queen in Right of Can. v. Tysowski, 118 Idaho 737, 800 P.2d 133 (Ct. App. 1990).

By expressly including judgments of the United States and its states and territories, the legislature impliedly excluded from the scope of the statute all other foreign judgments. Attorney Gen. ex rel. Her Majesty the Queen in Right of Can. v. Tysowski, 118 Idaho 737, 800 P.2d 133 (Ct. App. 1990).

This section applies only to an action upon a judgment, requiring a judgment creditor to file a completely new case. An Enforcement of Foreign Judgments Act (EFJA) filing does not involve initiating a new case, rather, the foreign judgment is treated in the same manner as an Idaho judgment by the clerk of the court in which the judgment is filed, and is subject to the same procedures, defenses and proceedings for reopening, vacating, or staying as an Idaho judgment, and may be enforced or satisfied in like manner as an Idaho judgment. Grazer v. Jones, 154 Idaho 58, 294 P.3d 184 (2013).

Interruption of Running of Statute.

Action under this section may be tolled by showing that party has moved outside state. Simonton v. Simonton, 33 Idaho 255, 193 P. 386 (1920).

Judgment Lien Removed as Cloud.

The six [now 10] years during which the lien of a judgment is granted by statute operate as a substantive part and limitation on the right created, not as a mere defense to be pleaded or waived, and, hence, such lien should be removed as a cloud on the judgment debtor’s title after six [now 10] years have elapsed without payment or removal of the judgment. Platts v. Pacific First Fed. Sav. & Loan Ass’n, 62 Idaho 340, 111 P.2d 1093 (1941).

Judgments Payable in Instalments.

Where judgment is made payable in instalments, statute applies to each instalment separately and does not begin to run on any instalment until it is due. Simonton v. Simonton, 33 Idaho 255, 193 P. 386 (1920).

Where a judgment is made payable in installments, as for alimony, the statute of limitations applies to each installment separately and does not begin to run on any installment until it is due. Cormana v. Naron, 37 Idaho 482, 217 P. 597 (1923).

Revived Judgment.

Where a judgment entered in a foreign jurisdiction is revived in that jurisdiction, the statute of limitations begins to run in this state from the date of the judgment of revivor. Leman v. Cunningham, 12 Idaho 135, 85 P. 212 (1906).

Section 5-238, requiring that acknowledgment taking contract out of statute must be in writing and signed by the debtor, held to apply to judgments. Woods v. Locke, 49 Idaho 486, 289 P. 610 (1930).

Right to Execution Immaterial.

The right to maintain an action on a judgment is not dependent upon the right to issue an execution thereon, but is governed by this section. Bashor v. Beloit, 20 Idaho 592, 119 P. 55 (1911).

Surety’s Suit on Stay Bond.

Suit by surety on stay bond paying deficiency judgment after foreclosure sale became subrogated to rights of judgment creditor and is governed by this section, instead of§ 5-217. Great Am. Indem. Co. v. Bisbee, 59 Idaho 18, 79 P.2d 1037 (1938).

Cross References.

Limitations generally applicable to state,§ 5-225.

Compiler’s Notes.

The words “prior to the adoption of this amendment” at the end of the section refer to the amendment of this section by S.L. 1939, chapter 244, effective March 11, 1939.

Absence of Contractual Duty.

Where the plaintiffs were attempting to recover on a contract to which it was not shown they were a party, and where the plaintiffs had not shown any contractual duty owed them by defendant, the trial court was correct in applying the three-year fraud statute of limitations of§ 5-218. Barnett v. Aetna Life Ins. Co., 99 Idaho 246, 580 P.2d 849 (1978).

Action Barred.

Where in an action for damages resulting from the seller’s representations that the property extended beyond the highway and the purchaser could build over the road, the purchaser knew of the existence of the highway prior to the execution of the contract for the sale of the property in 1974, and the breach of contract action was not brought until 1982, the statute of limitations precluded the purchaser from asserting a breach of contract. Lido Van & Storage, Inc. v. Kuck, 110 Idaho 939, 719 P.2d 1199 (1986).

Husband and wife attempted to recover loans made to decedent’s farming operation, which was a partnership; however, the statute of limitations barred recovery, despite the husband’s and wife’s contention that the parties had entered into a stipulation, which was not an acknowledgment of the loans. Reding v. Reding, 141 Idaho 369, 109 P.3d 1111 (2005).

Where development company’s improvement of land between property owners’ lot and a paved street in 2007 and 2008 should have put property owners on notice that the development company would not honor its contractual obligation to provide property owners with direct access to the street, a suit brought in 2015 was barred by the statute of limitations. Swafford v. Huntsman Springs, Inc., 163 Idaho 209, 409 P.3d 789 (2017).

Student’s breach of contract claims were time-barred where there was no evidence of an express or formal contract with the university. The handbooks and other documents the student referenced did not constitute an express contract, and, thus, the breach of contract claim was based on an implied contract and the four-year limitations period of this section applied. Jun Yu v. Idaho State Univ., 165 Idaho 313, 444 P.3d 885 (2019). Extension in writing and part payment.

Absence of Contractual Duty.

Where the plaintiffs were attempting to recover on a contract to which it was not shown they were a party, and where the plaintiffs had not shown any contractual duty owed them by defendant, the trial court was correct in applying the three-year fraud statute of limitations of§ 5-218. Barnett v. Aetna Life Ins. Co., 99 Idaho 246, 580 P.2d 849 (1978).

Action Barred.

Where in an action for damages resulting from the seller’s representations that the property extended beyond the highway and the purchaser could build over the road, the purchaser knew of the existence of the highway prior to the execution of the contract for the sale of the property in 1974, and the breach of contract action was not brought until 1982, the statute of limitations precluded the purchaser from asserting a breach of contract. Lido Van & Storage, Inc. v. Kuck, 110 Idaho 939, 719 P.2d 1199 (1986).

Husband and wife attempted to recover loans made to decedent’s farming operation, which was a partnership; however, the statute of limitations barred recovery, despite the husband’s and wife’s contention that the parties had entered into a stipulation, which was not an acknowledgment of the loans. Reding v. Reding, 141 Idaho 369, 109 P.3d 1111 (2005).

Where development company’s improvement of land between property owners’ lot and a paved street in 2007 and 2008 should have put property owners on notice that the development company would not honor its contractual obligation to provide property owners with direct access to the street, a suit brought in 2015 was barred by the statute of limitations. Swafford v. Huntsman Springs, Inc., 163 Idaho 209, 409 P.3d 789 (2017).

Action by Municipality Exempt.

Student’s breach of contract claims were time-barred where there was no evidence of an express or formal contract with the university. The handbooks and other documents the student referenced did not constitute an express contract, and, thus, the breach of contract claim was based on an implied contract and the four-year limitations period of this section applied. Jun Yu v. Idaho State Univ., 165 Idaho 313, 444 P.3d 885 (2019). Action by Municipality Exempt.

City’s breach of contract and waste claims against a property owner were not time barred, pursuant to the exception in this section. The term “state” in this section includes Idaho’s municipalities; thus, the city’s contract claims against the property owner were for the benefit of the state. City of Idaho Falls v. H-K Contrs., Inc., 163 Idaho 579, 416 P.3d 951 (2018).

Application.

A statute of limitations does not apply to defenses where no affirmative relief is sought, or to self-help set-offs and pledges. Smith v. Idaho State Univ. Fed. Credit Union, 114 Idaho 680, 760 P.2d 19 (1988).

Employers’ claim against the manager of the state insurance fund (SIF) for failure to distribute a dividend to policyholders under§ 72-915 was grounded in contract, not statute, and, therefore, the five-year statute of limitation in this section applied; it was the contract, and its breach by the SIF, that allowed the employers and their class to bring the action. Farber v. Idaho State Ins. Fund, 152 Idaho 495, 272 P.3d 467 (2012).

Attorney’s Fees.

Action on policy of life insurance in which temporary contract of insurance was found to exist was governed by five year limitation of this section; therefore, attorney’s fees, being part of the relief granted in the case limitation of this section also applied to such fees and not the two year limitation of subsection (2) of§ 5-219. Dunford v. United of Omaha, 95 Idaho 282, 506 P.2d 1355 (1973).

Carey Act Water Contracts.

Section 42-2026, relative to lien for purchase price of Carey Act water contract, does not except such water contracts from operation of this section and, therefore, does not preserve all remedies for their enforcement without regard to lapse of time. Mendini v. Milner, 47 Idaho 439, 276 P. 313 (1929).

Claim Against Decedent’s Estate.

Where money claim against decedent’s estate was presented to executor within statutory six-month period, and rejected by him some two years and eight months later, and suit was instituted within statutory three months from rejection by executor and the general statute of limitations of five years had not run either at the time of decedent’s death, or at time claim was presented to executor, the claim was controlled by probate statute and hence regardless of whether five year period had expired the general statute of limitations was stayed by the probate proceedings until executor’s disallowance of the claim. Cummings v. Langroise, 36 F. Supp. 174 (D. Idaho 1940), aff’d 123 F.2d 969 (9th Cir. 1941), cert. denied, 316 U.S. 664, 62 S. Ct. 944, 86 L. Ed. 1741 (1942).

Action by Municipality Exempt.

The general five-year limitation is superseded by the provisions of the probate statute relating to the filing of claims against an estate and the bringing of suit upon a rejected claim which had theretofore been presented to the executor or administrator and during the time the executor is considering the claim, the creditor is prohibited from instituting suit thereon, and the time intervening between the death of the decedent, and the time the claim is rejected is not to be computed as any part of the time within which the action must be brought. Cummings v. Langroise, 36 F. Supp. 174 (D. Idaho 1940), aff’d 123 F.2d 969 (9th Cir. 1941), cert. denied, 316 U.S. 664, 62 S. Ct. 944, 86 L. Ed. 1741 (1942). Action by Municipality Exempt.

City’s breach of contract and waste claims against a property owner were not time barred, pursuant to the exception in this section. The term “state” in this section includes Idaho’s municipalities; thus, the city’s contract claims against the property owner were for the benefit of the state. City of Idaho Falls v. H-K Contrs., Inc., 163 Idaho 579, 416 P.3d 951 (2018).

Application.

A statute of limitations does not apply to defenses where no affirmative relief is sought, or to self-help set-offs and pledges. Smith v. Idaho State Univ. Fed. Credit Union, 114 Idaho 680, 760 P.2d 19 (1988).

Employers’ claim against the manager of the state insurance fund (SIF) for failure to distribute a dividend to policyholders under§ 72-915 was grounded in contract, not statute, and, therefore, the five-year statute of limitation in this section applied; it was the contract, and its breach by the SIF, that allowed the employers and their class to bring the action. Farber v. Idaho State Ins. Fund, 152 Idaho 495, 272 P.3d 467 (2012).

Attorney’s Fees.

Action on policy of life insurance in which temporary contract of insurance was found to exist was governed by five year limitation of this section; therefore, attorney’s fees, being part of the relief granted in the case limitation of this section also applied to such fees and not the two year limitation of subsection (2) of§ 5-219. Dunford v. United of Omaha, 95 Idaho 282, 506 P.2d 1355 (1973).

Carey Act Water Contracts.

Section 42-2026, relative to lien for purchase price of Carey Act water contract, does not except such water contracts from operation of this section and, therefore, does not preserve all remedies for their enforcement without regard to lapse of time. Mendini v. Milner, 47 Idaho 439, 276 P. 313 (1929).

Claim Against Decedent’s Estate.

Where money claim against decedent’s estate was presented to executor within statutory six-month period, and rejected by him some two years and eight months later, and suit was instituted within statutory three months from rejection by executor and the general statute of limitations of five years had not run either at the time of decedent’s death, or at time claim was presented to executor, the claim was controlled by probate statute and hence regardless of whether five year period had expired the general statute of limitations was stayed by the probate proceedings until executor’s disallowance of the claim. Cummings v. Langroise, 36 F. Supp. 174 (D. Idaho 1940), aff’d 123 F.2d 969 (9th Cir. 1941), cert. denied, 316 U.S. 664, 62 S. Ct. 944, 86 L. Ed. 1741 (1942).

Commencement of Running of Statute.

The general five-year limitation is superseded by the provisions of the probate statute relating to the filing of claims against an estate and the bringing of suit upon a rejected claim which had theretofore been presented to the executor or administrator and during the time the executor is considering the claim, the creditor is prohibited from instituting suit thereon, and the time intervening between the death of the decedent, and the time the claim is rejected is not to be computed as any part of the time within which the action must be brought. Cummings v. Langroise, 36 F. Supp. 174 (D. Idaho 1940), aff’d 123 F.2d 969 (9th Cir. 1941), cert. denied, 316 U.S. 664, 62 S. Ct. 944, 86 L. Ed. 1741 (1942). Commencement of Running of Statute.

Where a contract contains an acceleration clause, positive in its terms and without optional features, a default under said clause renders the entire indebtedness due, and the statute runs from such default. Canadian Birkbeck Inv. & Sav. Co. v. Williamson, 32 Idaho 624, 186 P. 916 (1920); Perkins v. Swain, 35 Idaho 485, 207 P. 585 (1922).

Statute begins to run in favor of defendant at time cause of action accrues against him. Rawleigh Medical Co. v. Atwater, 33 Idaho 399, 195 P. 545 (1921); Perkins v. Swain, 35 Idaho 485, 207 P. 585 (1922); Ellis v. Capps, 46 Idaho 606, 269 P. 597 (1928).

Right of action on absolute contract of guaranty accrues immediately upon the breach of an obligation guaranteed. Rawleigh Medical Co. v. Atwater, 33 Idaho 399, 195 P. 545 (1921).

Statute begins to run against warrant-holder when his cause of action accrues. Little v. Emmett Irrigation Dist., 45 Idaho 485, 263 P. 40 (1928).

Cause of action of warrant-holder accrues when fund upon which warrant is drawn is raised or when statute provides or implies due date for warrant, or imposes duty upon municipality to levy and collect fund and sufficient time has lapsed to provide such fund and it has failed or neglected to do so. Little v. Emmett Irrigation Dist., 45 Idaho 485, 263 P. 40 (1928).

If holder of warrant issued under contract relation has remedy which he may pursue at time of its issuance, statute begins to run then. Little v. Emmett Irrigation Dist., 45 Idaho 485, 263 P. 40 (1928).

The statute of limitations begins to run in favor of a stockholder when, under the terms of a particular statute or facts of a particular case, the cause of action accrued against him. Ellis v. Capps, 46 Idaho 606, 269 P. 597 (1928).

Instrument payable on demand is due immediately, and the statute commences to run from the date of its execution. Mahas v. Kasiska, 47 Idaho 179, 276 P. 315 (1928).

Statute of limitations begins to run upon bonds given in attachment proceedings immediately upon the return of the execution. Stewart v. Slater, 61 Idaho 628, 105 P.2d 729 (1940).

Where a corporation sold the stock of one of its shareholders to pay a delinquent assessment thereon, even though it be conceded that the assessment was illegal, the shareholder’s remedy accrued immediately upon the making of such assessment, or as soon thereafter as the shareholder had knowledge thereof, and the statutes of limitation then began to run. State ex rel. Brooks v. Overland Beverage Co., 69 Idaho 126, 203 P.2d 1009 (1949).

Complaint brought by purchasers against vendors for rescission or damages based on the fact that one cabin and certain sewer pipes and part of a service station encroached upon the right-of-way of the city was not barred by the provisions of this section and§ 5-218 where such knowledge of encroachment was had on December 29, 1952, and action was filed January 18, 1954. Galvin v. Appleby, 78 Idaho 457, 305 P.2d 309 (1956).

An amendment to a complaint alleging partner to be continuing business to date though preventing appellant partner from active participation considered in conjunction with other material facts alleged would clearly state facts sufficient to constitute a cause of action not barred by the statute of limitations, as set out in this section or§ 5-217. Markstaller v. Markstaller, 80 Idaho 129, 326 P.2d 994 (1958). Where record showed that more than five years elapsed between the time the cause of action accrued and the time suit was instituted, lessors were entitled to rely on the statute of limitations as a defense to lessees’ claim for alleged breach of contract. Skaggs v. Jensen, 94 Idaho 179, 484 P.2d 728 (1971).

Where money is payable in instalments, the statute begins to run against recovery of a delinquent instalment when it becomes due. H.M. Chase Corp. v. Idaho Potato Processors, Inc., 96 Idaho 398, 529 P.2d 1270 (1974).

Since an action on an indemnity agreement does not accrue until the indemnitor suffers damage or loss, the five-year statute of limitations on written contracts did not bar a warehouse bond surety’s action against the warehouseman for indemnification pursuant to a 1964 indemnity agreement, where the surety’s action did not accrue until 1973 when the state closed the bonded warehouse. State Dep’t of Agric. v. Millers Nat’l Ins. Co., 97 Idaho 323, 543 P.2d 1163 (1975).

An action for the enforcement of a vendor’s lien and an action for the unpaid purchase price are interrelated and it is reasonable to conclude that the legislative intent was to allow the statute of limitations for the lien claim to run only where the statute of limitations runs to bar the claim for the debt. Blankenship v. Myers, 97 Idaho 356, 544 P.2d 314 (1975).

Debtor’s suit for breach of contract, against bank issuing credit card, based on the erroneous reporting of credit information, was not barred by the statute of limitations because the earliest act which could be considered the basis for the breach occurred when bank stopped sending monthly statements to debtors, which occurred within the five year period. Hoglan v. First Sec. Bank, 120 Idaho 682, 819 P.2d 100 (1991).

The plaintiffs’ claim for specific performance of an agreement to convey real property was not barred by the statute of limitations where the statute did not begin to run until mortgages or loans encumbrancing the property at issue were extinguished, thereby fulfilling a condition in the agreement and requiring the defendant to convey the property. Simons v. Simons, 134 Idaho 824, 11 P.3d 20 (2000).

Simple statements of land ownership were factually true assertions and did not give rise to a cause of action; the associations’ cause of action began to run when the landowners first gave notice to the association that no rights, even the limited right to use the land for recreational purposes, existed. Saddlehorn Ranch Landowner’s, Inc. v. Dyer, 146 Idaho 747, 203 P.3d 677 (2009).

Statute of limitations set forth in this section began to run on a cause of action for UIM benefits under an automobile insurance policy on the day the insurance company breached its contract with the insured, as that action provided the court with an actual justiciable controversy, which was based on the parties’ contract. Klein v. Farmers Ins. Co., — Idaho —, 453 P.3d 266 (2019).

Conflict of Laws.

To determine the application of the statute of limitations of Idaho to a contract entered into in another state, the contract and the laws of the other state must be examined for determining the date from which the statute runs. Sterrett v. Sweeney, 15 Idaho 416, 98 P. 418 (1908).

In the absence of a local statute changing the rule, the limitation of time for bringing an action upon a contract depends upon the law of the forum. Canadian Birkbeck Inv. & Sav. Co. v. Williamson, 32 Idaho 624, 186 P. 916 (1920). Even if an Idaho court would allow reformation of an insurance policy, it would not recognize the parties’ choice of Illinois law on the statute of limitation issue where Idaho had a materially greater interest in the statute of limitation as the forum state within which the damaged property was located and Idaho has expressed a fundamental policy by requiring strict adherence to its statutory limitations period. Industrial Indem. Ins. Co. v. United States, 757 F.2d 982 (9th Cir. 1985).

In a suit by the United States against a railroad’s insurance company for reimbursement for compensation paid under the Teton Dam Disaster Assistance Act (see P.L. 94-400), the Idaho five year statute of limitations overrode the contractual one year limitation and when the government acquired its claims the six year federal limitation became applicable. Industrial Indem. Ins. Co. v. United States, 757 F.2d 982 (9th Cir. 1985).

Construction.

The statute of limitations is general, is to be liberally construed, and must be applied to all cases where an exception is not specifically made. Mendini v. Milner, 47 Idaho 439, 276 P. 313 (1929).

Contract for Sale of Goods.

Section 28-2-725, and not this section, controls all actions for breach of contract for the sale of goods. Farmers Nat’l Bank v. Wickham Pipeline Constr., 114 Idaho 565, 759 P.2d 71 (1988).

Contracts Reducing Period Void.

Provision in health and accident policy that no action could be brought on the policy unless brought within two years after expiration of time to make proof of loss is void. Harding v. Mutual Benefit Health & Accident Ass’n, 55 Idaho 131, 39 P.2d 306 (1934).

Court of Equity.

A court of equity is not bound to apply statute of limitations which works an injustice to the creditor, and when unusual conditions or extraordinary circumstances make it inequitable. Cummings v. Langroise, 36 F. Supp. 174 (D. Idaho 1940), aff’d 123 F.2d 969 (9th Cir. 1941), cert. denied, 316 U.S. 664, 62 S. Ct. 944, 86 L. Ed. 1741 (1942). But see Steinour v. Oakley State Bank, 49 Idaho 293, 287 P. 949 (1930).

Where the plaintiff who has loaned decedent large sums of money under circumstances, and at times, when it was greatly needed in the preservation of the decedent’s estate, to support himself, and for the payment of numerous large counsel fees, and, upon decedent’s death, the plaintiff brought an action for the amount of the loans and sought the enforcement of a lien on the interest of the decedent in an estate, a federal district court sitting as a court of equity would not adjudge that recovery was barred by the five-year statute of limitations even if it could properly do so. Cummings v. Langroise, 36 F. Supp. 174 (D. Idaho 1940), aff’d 123 F.2d 969 (9th Cir. 1941), cert. denied, 316 U.S. 664, 62 S. Ct. 944, 86 L. Ed. 1741 (1942).

Credit Card Debt.

Creditor’s Action on Debt Independent of Foreclosure.

The five-year statute of limitations in this section is applicable in an action against a debtor to collect on two credit card accounts, because the terms of the open accounts are set forth in a written contract. Unifund CCR, LLC v. Lowe, 159 Idaho 750, 367 P.3d 145 (2016). Creditor’s Action on Debt Independent of Foreclosure.

Holders of a promissory note secured by a deed of trust, who sued for a money judgment on the note, were not subject to the statutory limitations applicable to a deficiency action following foreclosure; the time limit provided for in§ 45-1512 applies to deficiency actions resulting from foreclosure sales; it does not apply to a creditor’s action on the debt which is independent of any foreclosure proceedings; under these circumstances, a creditor has five years in which to bring an action upon his promissory note, as provided for in this section. Tanner v. Shearmire, 115 Idaho 1060, 772 P.2d 267 (Ct. App. 1989).

Deficiency Judgment after Foreclosure in Another State.

In an Idaho deficiency judgment action after a Utah foreclosure action, the Idaho court could determine if any instalments, which matured prior to the commencement of the foreclosure, were barred by the Idaho statute of limitations, but could not defer the maturity of instalments already matured by election under an acceleration clause of the contract. American Mut. Bldg. & Loan Co. v. Kesler, 64 Idaho 799, 137 P.2d 960 (1943).

Effect of Acceleration Clause.

Where the clause of acceleration of maturity of a mortgage upon default in payment of an instalment of interest or principal or upon other default provides unconditionally for the maturity of the entire indebtedness, irrespective of the pleasure or option of the mortgagee, the indebtedness becomes due upon a default of the nature provided for and the statute of limitations runs from such default; but where the acceleration clause gives merely an election or option to the mortgagee to declare the entire indebtedness due, the statute of limitations does not run as to the entire indebtedness from a default, unless there is an affirmative election by the mortgagee. Union Cent. Life Ins. Co. v. Keith, 58 Idaho 471, 74 P.2d 699 (1937).

Where defendant claimed that there had been an exercise of an option under acceleration clause in a mortgage and that the debt was due for more than five years, and the mortgagee had many officers and agents throughout the state, such mortgagee was entitled to a bill of particulars from the defendant setting out in advance of trial what particular officer or agent it would be claimed exercised the option under said acceleration clause. Union Cent. Life Ins. Co. v. Nielson, 62 Idaho 483, 114 P.2d 252 (1941).

Where a mortgagee availed itself of the benefits of an acceleration clause in a mortgage, future instalments were immediately matured for all purposes, and the statute of limitations then began to run against unmatured instalments and continued to run against past due instalments. American Mut. Bldg. & Loan Co. v. Kesler, 64 Idaho 799, 137 P.2d 960 (1943).

Where a mortgagee in a Utah foreclosure action elected to declare all instalments due, in an Idaho action for a deficiency judgment based upon such foreclosure, such instalments, in relation to the statute of limitations, could not be considered as separate causes of action. American Mut. Bldg. & Loan Co. v. Kesler, 64 Idaho 799, 137 P.2d 960 (1943).

Enforcement of Public Right.

If an action brought in 1964 constituted an election to accelerate all payments under a promissory note, the statute of limitations began to run against the entire indebtedness at that time, but, if there was no election to accelerate the terms of the note, the statute of limitations applied to each installment separately and did not begin to run on any installment until it was due. Thomas v. Goff, 100 Idaho 282, 596 P.2d 794 (1979). Enforcement of Public Right.

Where the actions of the department of transportation were consistent with the exercise of its police powers, as authorized by the legislature, their actions were not barred by the statute of limitations, because statutes of limitations do not operate against the state when the state is acting in its sovereign capacity to enforce a public right. Young Elec. Sign Co. v. State ex rel. Winder, 135 Idaho 804, 25 P.3d 117 (2001).

Estoppel.

The elements of equitable estoppel, the only non-statutory bar to a statute of limitation defense in Idaho, are: (1) a false representation or concealment of a material fact with actual or constructive knowledge of the truth; (2) that the party asserting estoppel did not know or could not discover the truth; (3) that the false representation or concealment was made with the intent that it be relied upon; and (4) that the person to whom the representation was made, or from whom the facts were concealed, relied and acted upon the representation or concealment to his prejudice. J.R. Simplot Co. v. Chemetics Int’l, Inc., 126 Idaho 532, 887 P.2d 1039 (1994).

Estoppel does not “extend” a statute of limitation. Rather, it prevents a party from pleading and utilizing the statute of limitation as a bar, although the time limit of the statute may have already run. J.R. Simplot Co. v. Chemetics Int’l, Inc., 126 Idaho 532, 887 P.2d 1039 (1994).

Extension in Writing and Part Payment.

A suit to foreclose a real estate mortgage, commenced within four years after the time of payment of the balance of the mortgage fixed by a written extension agreement, and about the same length of time after the making of certain payments on the mortgage, was not barred by this provision. Union Cent. Life Ins. Co. v. Nielson, 62 Idaho 483, 114 P.2d 252 (1941).

Foreclosure of Mortgage.

Cause of action for foreclosure of mortgage based on option provided for in acceleration clause accrues on exercise of option and not upon default. Union Cent. Life Ins. Co. v. Keith, 58 Idaho 471, 74 P.2d 699 (1937).

Insurance Contract.

Statutory amendment by implication is disfavored and will not be inferred absent clear legislative intent; accordingly, the legislature, by providing in§ 41-2401 that no fire insurer shall issue fire insurance on a form other than the “New York Standard as Revised in 1943,” did not intend to amend the general five-year statute of limitations upon actions brought upon written contracts and did not create a one-year statute of limitations with respect to actions on policies of fire insurance. Sunshine Mining Co. v. Allendale Mut. Ins. Co., 107 Idaho 25, 684 P.2d 1002 (1984).

Installment Contracts.

Section 41-2401 requires that fire insurers issue policies only on the New York standard form as revised in 1943; the form includes a clause specifying a 12-month limitation period for claims. However, this section establishes a five-year statute of limitation for contracts, including insurance policies, and§ 29-110 prohibits any condition in a contract that would reduce that period; thus, the applicable limitations period for the commencement of a suit for reimbursement was five years. Industrial Indem. Ins. Co. v. United States, 757 F.2d 982 (9th Cir. 1985). Installment Contracts.

Absent an acceleration clause in the parties’ agreement, where money is payable in installments, the statute of limitations begins to run against a cause of action for the recovery of a delinquent installment as of the time it becomes due. Where a loan contract contains a clause accelerating the full balance due upon the debtor’s default, the Idaho statute of limitations commences to run from the date of that default, unless the acceleration clause is elective, in which case, the statute of limitations does not run as to the entire indebtedness unless the lender makes an affirmative election. In re Davis, 554 B.R. 918 (Bankr. D. Idaho 2016).

Interruption of Running of Statute.

Payment of interest and agreement to postpone payment of mortgage on community property, executed by husband alone, is sufficient to take mortgage out of statute of limitations. Cook v. Stellmon, 43 Idaho 433, 251 P. 957 (1927).

Where statute of limitations is tolled against note secured by real estate mortgage, mortgage lien thereon stands unimpaired. Cook v. Stellmon, 43 Idaho 433, 251 P. 957 (1927).

Where plaintiff’s cross-complaint against intervenor made no reference to the commencement of the action or filing of the complaint in intervention and failed to plead any facts tolling the running of the statute, it was too late if filed after statute had run against the claim being sued on. Denton v. Detweiler, 48 Idaho 369, 282 P. 82 (1929).

The statute of limitations runs in favor of a debtor only when he is actually in the state and is tolled as soon as he leaves the state. Roberts v. Hudson, 49 Idaho 132, 286 P. 364 (1930).

A written approval by the debtor of the report of the lender showing advances and loans made and reciting that none of the advances or loans have been repaid constituted an “acknowledgment” that the loans had not been repaid and of the continuing indebtedness, so that the statute of limitations began to run anew on the date of such acknowledgment. Cummings v. Langroise, 36 F. Supp. 174 (D. Idaho 1940), aff’d 123 F.2d 969 (9th Cir. 1941), cert. denied, 316 U.S. 664, 62 S. Ct. 944, 86 L. Ed. 1741 (1942).

The application of the receipts from a foreclosure sale of mortgage securities does not toll the statute of limitations. American Mut. Bldg. & Loan Co. v. Kesler, 64 Idaho 799, 137 P.2d 960 (1943).

Where the defendants defaulted on a promissory note on September 13, 1967, and an action thereon was commenced on June 21, 1973, such action was not barred by this section since the defendants’ absence from the state from 1968 to date of trial tolled the statute of limitations. Jones v. Watson, 98 Idaho 606, 570 P.2d 284 (1977).

Irrigation District Warrants.

Statute of limitations runs against warrants issued by an irrigation district both in an action to place the warrants in judgment or in a mandamus proceeding. Tingwall v. King Hill Irrigation Dist., 66 Idaho 76, 155 P.2d 605 (1945).

Mandamus Action to Compel Reassessment.

Mortgages.

Where a mandamus to compel reassessment of property within a special or local improvement district was brought some eighteen months after actual notice of the deficiency through the city clerk’s fault, the action was not barred by limitation. Maguire v. Whillock, 63 Idaho 630, 124 P.2d 248 (1942). Mortgages.

Record notice of existence and nonpayment of mortgage does not entitle purchaser of mortgaged land to quiet title as against mortgagee though debt is barred by limitation period, if purchaser is in privity with original mortgagor and knows that mortgage in fact has not been paid. Trusty v. Ray, 73 Idaho 232, 249 P.2d 814 (1952).

Mortgage Securing Note Barred by Limitations not Admissible in Evidence.

In a mortgagor’s action against the third party to recover mortgaged property, the exclusion of authenticated copies of a chattel mortgage and an assignment, offered in evidence on the question of damages to show that the property could not be removed from the county without the mortgagee’s consent, was not error, where the notes secured by the mortgages were apparently barred by the statute of limitations. Huron Holding Corp. v. Lincoln Mine Operating Co., 101 F.2d 458 (9th Cir. 1939).

Partial Payment of Debt.

The limitations period can be extended by an obligor who makes a partial payment after the note is due, as such partial payment is deemed equivalent to a new promise by the obligor to satisfy the debt. Thomson v. Sunny Ridge Village Partnership, 118 Idaho 330, 796 P.2d 539 (Ct. App. 1990).

The time period prescribed in a statute of limitations was not extended with respect to one obligor on a note as a result of partial payments made by a co-maker after the note had gone into default. Thomson v. Sunny Ridge Village Partnership, 118 Idaho 330, 796 P.2d 539 (Ct. App. 1990).

Because§ 5-238 treats a payment of interest as the equivalent of a new promise, and because a promise binds only the person making it, a partial payment should extend a statutory period of limitation only as to the person who makes the payment. Certain exceptions do exist, however, and they include when a nonpaying co-debtor directs or requests that the payment be made, authorizes or consents to the payment, or ratifies such payment. Thomson v. Sunny Ridge Village Partnership, 118 Idaho 330, 796 P.2d 539 (Ct. App. 1990).

Where an ex-husband failed to make payments on a promissory note, the statute of limitations did not bar the ex-wife’s breach of contract claim, because the ex-husband’s payment of interest or principal served to restart the statute on all of the installments. Horkley v. Horkley, 144 Idaho 879, 173 P.3d 1138 (2007).

Patent License Agreements.

This section also governs enforcement of patent license agreements. H.M. Chase Corp. v. Idaho Potato Processors, Inc., 96 Idaho 398, 529 P.2d 1270 (1974).

Pleading and Practice.

The statute of limitations is a personal privilege, and, to be made available, must be pleaded; it can not be interposed by argument or inference. Frantz v. Idaho Artesian Well & Drilling Co., 5 Idaho 71, 46 P. 1026 (1896).

Renewal of Promise to Pay.

Evidence adequately supported the court’s conclusion that the promise to pay had been renewed by an interest payment, where the trial judge was persuaded that alterations on the face of the exhibits were made in response to the promisor’s directions; therefore, the action on the note was not barred by the five-year limitation period prescribed by this section. Modern Mills, Inc. v. Havens, 112 Idaho 1101, 739 P.2d 400 (Ct. App. 1987).

Repair Doctrine.

The “repair doctrine” bars a contractor or vendor of faulty goods, who has discouraged the owner or purchaser from filing suit until the applicable statutes of limitation have run, from utilizing the statutes of limitations as a defense; such doctrine has not been subscribed to either as a version of equitable estoppel or an alternative means of barring or tolling a statute of limitations defense by the courts of Idaho. J.R. Simplot Co. v. Chemetics Int’l, Inc., 126 Idaho 532, 887 P.2d 1039 (1994).

Retirement Benefits.

Where employer insured employee’s life, the policies to vest in employee if employer went out of business, these benefits were not attributed to, or earned in, a specific pay period, but were earned over the entire course of the employment relationship, and§ 45-608 applies to an action to recover retirement benefits such as those in this case. Latham v. Haney Seed Co., 119 Idaho 412, 807 P.2d 630 (1991).

School District Warrants.

The statute of limitation applicable to a bank’s action against a school district for moneys advanced in payment of school warrants, issued against taxes on lands within the district, was suspended by a moratorium act extending time for payment of delinquent taxes and redemption of lands from tax liens. American Nat’l Bank v. Joint Indep. Sch. Dist. No. 9, 61 Idaho 405, 102 P.2d 826 (1940).

Set-off of Funds.

A credit union’s exercise of its “self-help” right of set-off contained in the pledge agreement with the plaintiff and her husband did not require any court action to accomplish, and, accordingly, the statute of limitations was not implicated when the credit union set off funds deposited with it against defaulted loans of the husband. Smith v. Idaho State Univ. Fed. Credit Union, 114 Idaho 680, 760 P.2d 19 (1988).

State Not Within Section.

Under Idaho Const., Art. IX, § 5 and Admission Act of July 3, 1892, §§ 3 and 4, the state is exempt from the operation of this section as regards loans made from the permanent school funds. United States v. Fenton, 27 F. Supp. 816 (D. Idaho 1939); State v. Peterson, 61 Idaho 50, 97 P.2d 603 (1939) (Decided prior to 1939 amendment).

Stock Subscriptions.

General statute of limitations applies to actions for recovery of unpaid subscriptions for corporate stock. Ellis v. Capps, 46 Idaho 606, 269 P. 597 (1928).

An action by a corporation to recover a subscription for stock, payable in two instalments, begun more than five years after the first instalment was due was barred as to such instalment. Cassia Creek Reservoir Co. v. Harper, 91 Idaho 488, 426 P.2d 209 (1967). Evidence adequately supported the court’s conclusion that the promise to pay had been renewed by an interest payment, where the trial judge was persuaded that alterations on the face of the exhibits were made in response to the promisor’s directions; therefore, the action on the note was not barred by the five-year limitation period prescribed by this section. Modern Mills, Inc. v. Havens, 112 Idaho 1101, 739 P.2d 400 (Ct. App. 1987).

Repair Doctrine.

The “repair doctrine” bars a contractor or vendor of faulty goods, who has discouraged the owner or purchaser from filing suit until the applicable statutes of limitation have run, from utilizing the statutes of limitations as a defense; such doctrine has not been subscribed to either as a version of equitable estoppel or an alternative means of barring or tolling a statute of limitations defense by the courts of Idaho. J.R. Simplot Co. v. Chemetics Int’l, Inc., 126 Idaho 532, 887 P.2d 1039 (1994).

Retirement Benefits.

Where employer insured employee’s life, the policies to vest in employee if employer went out of business, these benefits were not attributed to, or earned in, a specific pay period, but were earned over the entire course of the employment relationship, and§ 45-608 applies to an action to recover retirement benefits such as those in this case. Latham v. Haney Seed Co., 119 Idaho 412, 807 P.2d 630 (1991).

School District Warrants.

The statute of limitation applicable to a bank’s action against a school district for moneys advanced in payment of school warrants, issued against taxes on lands within the district, was suspended by a moratorium act extending time for payment of delinquent taxes and redemption of lands from tax liens. American Nat’l Bank v. Joint Indep. Sch. Dist. No. 9, 61 Idaho 405, 102 P.2d 826 (1940).

Set-off of Funds.

A credit union’s exercise of its “self-help” right of set-off contained in the pledge agreement with the plaintiff and her husband did not require any court action to accomplish, and, accordingly, the statute of limitations was not implicated when the credit union set off funds deposited with it against defaulted loans of the husband. Smith v. Idaho State Univ. Fed. Credit Union, 114 Idaho 680, 760 P.2d 19 (1988).

State Not Within Section.

Under Idaho Const., Art. IX, § 5 and Admission Act of July 3, 1892, §§ 3 and 4, the state is exempt from the operation of this section as regards loans made from the permanent school funds. United States v. Fenton, 27 F. Supp. 816 (D. Idaho 1939); State v. Peterson, 61 Idaho 50, 97 P.2d 603 (1939) (Decided prior to 1939 amendment).

Stock Subscriptions.

General statute of limitations applies to actions for recovery of unpaid subscriptions for corporate stock. Ellis v. Capps, 46 Idaho 606, 269 P. 597 (1928).

Surety’s Right of Reimbursement.

An action by a corporation to recover a subscription for stock, payable in two instalments, begun more than five years after the first instalment was due was barred as to such instalment. Cassia Creek Reservoir Co. v. Harper, 91 Idaho 488, 426 P.2d 209 (1967). Surety’s Right of Reimbursement.

Right of action of a surety to recover reimbursement from his principal, which accrues when the surety pays the debt, and the obligation of the principal to repay the surety is not founded upon a written instrument within this section. Tritthart v. Tritthart, 24 Idaho 186, 133 P. 121 (1913).

Tort Claim.

Where water heater was installed in home pursuant to contract and, 18 years later, heater exploded, an action by homeowner alleging misfeasance in installation of water heater was a claim in tort, not contract, and statutes of limitations relating to contracts did not apply. Galbraith v. Vangas, Inc., 103 Idaho 912, 655 P.2d 119 (Ct. App. 1982).

When Period Begins to Run.

Because the five-year statute of limitations did not begin to run against buyers of farmland while the buyers were in uninterrupted possession, the buyers were not barred from asserting a claim for specific performance as to land they possessed in accordance with the terms of a land exchange agreement they had made with the sellers more than five years earlier. Peterson v. Gentillon, 154 Idaho 184, 296 P.3d 390 (2013).

Tort Claim.

Where water heater was installed in home pursuant to contract and, 18 years later, heater exploded, an action by homeowner alleging misfeasance in installation of water heater was a claim in tort, not contract, and statutes of limitations relating to contracts did not apply. Galbraith v. Vangas, Inc., 103 Idaho 912, 655 P.2d 119 (Ct. App. 1982).

When Period Begins to Run.

Because the five-year statute of limitations did not begin to run against buyers of farmland while the buyers were in uninterrupted possession, the buyers were not barred from asserting a claim for specific performance as to land they possessed in accordance with the terms of a land exchange agreement they had made with the sellers more than five years earlier. Peterson v. Gentillon, 154 Idaho 184, 296 P.3d 390 (2013).

Am. Jur. 2d.

C.J.S.

ALR.

Choice of law as to applicable statute of limitations in contract acts. 78 A.L.R.3d 639.

Validity of contractual provisions establishing period of limitation longer than that provided by statute of limitations. 84 A.L.R.3d 1172.

Actions by County.

An action by a county to recover from the clerk of court, auditor and recorder moneys illegally allowed by the county commissioners to the clerk and fees illegally collected by the clerk from the county is barred after four years. Bannock County v. Bell, 8 Idaho 1, 65 P. 710 (1901).

An action by the county to recover from one who has not paid for recording instruments the full amount of fees prescribed by statute is not an action upon a liability created by statute but an action “upon a contract, obligation or liability, not founded upon an instrument of writing.” Lincoln County v. Twin Falls N. Side Land & Water Co., 23 Idaho 433, 130 P. 788 (1913).

Application of Section.

This section is applicable to an action by one of several cosureties who has paid the principal debt, to enforce contribution. Bell v. Morton, 38 Idaho 758, 225 P. 137 (1924).

This section is not applicable to action to recover deposit which bank credited on depositor’s note. Prewett v. First Nat’l Bank, 45 Idaho 451, 262 P. 1057 (1928).

Action brought within four years from entry of last item on account for services as a farm laborer was not barred. McCarthy v. Paris, 46 Idaho 165, 267 P. 232 (1928). «Title 5»«Ch. 2»«§ 5-217»

Actions by County.

An action by a county to recover from the clerk of court, auditor and recorder moneys illegally allowed by the county commissioners to the clerk and fees illegally collected by the clerk from the county is barred after four years. Bannock County v. Bell, 8 Idaho 1, 65 P. 710 (1901).

An action by the county to recover from one who has not paid for recording instruments the full amount of fees prescribed by statute is not an action upon a liability created by statute but an action “upon a contract, obligation or liability, not founded upon an instrument of writing.” Lincoln County v. Twin Falls N. Side Land & Water Co., 23 Idaho 433, 130 P. 788 (1913).

Application of Section.

This section is applicable to an action by one of several cosureties who has paid the principal debt, to enforce contribution. Bell v. Morton, 38 Idaho 758, 225 P. 137 (1924).

This section is not applicable to action to recover deposit which bank credited on depositor’s note. Prewett v. First Nat’l Bank, 45 Idaho 451, 262 P. 1057 (1928).

Action brought within four years from entry of last item on account for services as a farm laborer was not barred. McCarthy v. Paris, 46 Idaho 165, 267 P. 232 (1928). An action to recover amount due on an oral subscription to corporate stock is governed by this section. Ellis v. Capps, 46 Idaho 606, 269 P. 597 (1928).

The general rule is that the defense of the statute of limitations is not available during the pendency of the action unless the claim was barred when the action was commenced. Oregon S.L.R.R. v. Ballantyne, 48 Idaho 351, 282 P. 80 (1929).

Surety on stay bond, paying deficiency judgment after foreclosure sale, became subrogated to rights of judgment creditor and is governed by§ 5-215 instead of by this section. Great Am. Indem. Co. v. Bisbee, 59 Idaho 18, 79 P.2d 1037 (1938).

When purchaser sought to recover down payment alleging vendor’s false representation respecting payments due on mortgage, the basis of the action was fraud and the suit was governed by the 3 year statute of limitations for fraud rather than the 4 year statute applicable to contracts not founded on writings. Thomas v. Gordon, 68 Idaho 254, 192 P.2d 856 (1948).

Counterclaim by corporation to recover damages from officer of corporation for breach of trust is not controlled by 3 year statute set forth in§ 5-218 but is governed by four year statutes set forth in this section and§ 5-224. Melgard v. Moscow Idaho Seed Co., 73 Idaho 265, 251 P.2d 546 (1952).

Where both complaint and defendant’s counterclaim were based on a logging contract, defendant’s cross demands could be pleaded defensively; therefore, the striking of defendant’s counterclaims was erroneous, as they were not barred by the statute of limitations under this section or§ 5-224. Kelson v. Ahlborn, 87 Idaho 519, 393 P.2d 578 (1964).

If there had been an oral contract permitting use of patent for dehydrated potato powder, cause of action for its breach occurred not later than 1954 and was barred at time of suit in 1960. Templeton Patents, Ltd. v. J.R. Simplot Co., 336 F.2d 261 (9th Cir. 1964).

Patent owner’s claim of unjust enrichment was for value conferred through disclosures and assistance to alleged infringer more than four years before the action in quasi-contract; therefore, such action was barred. Templeton Patents, Ltd. v. J.R. Simplot Co., 336 F.2d 261 (9th Cir. 1964).

Assuming that there had been a contract which permitted defendant to use patents to produce dehydrated potato powder, since evidence reveals plaintiff allowed defendant to produce potato powder and benefit from alleged technical information for nine years before instituting suit, the action for breach was barred by the four-year statute of limitations. Templeton Patents, Ltd. v. J.R. Simplot Co., 220 F. Supp. 48 (D. Idaho 1963), aff’d, 336 F.2d 261 (9th Cir. 1964).

Where it was more than four years prior to commencement of action for unjust enrichment that patent owner supplied certain technical information which aided the alleged infringer to produce dehydrated potatoes by use of patented process, action by patent owner for damages was barred by limitations. Templeton Patents, Ltd. v. J.R. Simplot Co., 220 F. Supp. 48 (D. Idaho 1963), aff’d, 336 F.2d 261 (9th Cir. 1964).

Refusal to allow amendment of complaint to foreclose contractor’s lien by adding a cause of action for quantum meruit, where more than four and one-half years had elapsed since the performance of the alleged extra work and the extra work was independent of the original contracts, was proper inasmuch as the four year statute of limitations was applicable to the cause of action for quantum meruit. Mitchell v. Flandro, 95 Idaho 228, 506 P.2d 455 (1973).

In June 1971, the defendants were not certified public accountants, and, at that time, they clearly were not engaged in professional services for which they were licensed; therefore, the alleged acts of malpractice of the defendants cannot be denominated as of June, 1971, to be professional malpractice; hence, the two-year limitation period is inapplicable to the causes of action against them relating to that fiscal year (1970); rather the applicable statute of limitations would be the four year period of either this section or§ 5-224. Owyhee County v. Rife, 100 Idaho 91, 593 P.2d 995 (1979). An action to recover amount due on an oral subscription to corporate stock is governed by this section. Ellis v. Capps, 46 Idaho 606, 269 P. 597 (1928).

The general rule is that the defense of the statute of limitations is not available during the pendency of the action unless the claim was barred when the action was commenced. Oregon S.L.R.R. v. Ballantyne, 48 Idaho 351, 282 P. 80 (1929).

Surety on stay bond, paying deficiency judgment after foreclosure sale, became subrogated to rights of judgment creditor and is governed by§ 5-215 instead of by this section. Great Am. Indem. Co. v. Bisbee, 59 Idaho 18, 79 P.2d 1037 (1938).

When purchaser sought to recover down payment alleging vendor’s false representation respecting payments due on mortgage, the basis of the action was fraud and the suit was governed by the 3 year statute of limitations for fraud rather than the 4 year statute applicable to contracts not founded on writings. Thomas v. Gordon, 68 Idaho 254, 192 P.2d 856 (1948).

Counterclaim by corporation to recover damages from officer of corporation for breach of trust is not controlled by 3 year statute set forth in§ 5-218 but is governed by four year statutes set forth in this section and§ 5-224. Melgard v. Moscow Idaho Seed Co., 73 Idaho 265, 251 P.2d 546 (1952).

Where both complaint and defendant’s counterclaim were based on a logging contract, defendant’s cross demands could be pleaded defensively; therefore, the striking of defendant’s counterclaims was erroneous, as they were not barred by the statute of limitations under this section or§ 5-224. Kelson v. Ahlborn, 87 Idaho 519, 393 P.2d 578 (1964).

If there had been an oral contract permitting use of patent for dehydrated potato powder, cause of action for its breach occurred not later than 1954 and was barred at time of suit in 1960. Templeton Patents, Ltd. v. J.R. Simplot Co., 336 F.2d 261 (9th Cir. 1964).

Patent owner’s claim of unjust enrichment was for value conferred through disclosures and assistance to alleged infringer more than four years before the action in quasi-contract; therefore, such action was barred. Templeton Patents, Ltd. v. J.R. Simplot Co., 336 F.2d 261 (9th Cir. 1964).

Assuming that there had been a contract which permitted defendant to use patents to produce dehydrated potato powder, since evidence reveals plaintiff allowed defendant to produce potato powder and benefit from alleged technical information for nine years before instituting suit, the action for breach was barred by the four-year statute of limitations. Templeton Patents, Ltd. v. J.R. Simplot Co., 220 F. Supp. 48 (D. Idaho 1963), aff’d, 336 F.2d 261 (9th Cir. 1964).

Where it was more than four years prior to commencement of action for unjust enrichment that patent owner supplied certain technical information which aided the alleged infringer to produce dehydrated potatoes by use of patented process, action by patent owner for damages was barred by limitations. Templeton Patents, Ltd. v. J.R. Simplot Co., 220 F. Supp. 48 (D. Idaho 1963), aff’d, 336 F.2d 261 (9th Cir. 1964).

Refusal to allow amendment of complaint to foreclose contractor’s lien by adding a cause of action for quantum meruit, where more than four and one-half years had elapsed since the performance of the alleged extra work and the extra work was independent of the original contracts, was proper inasmuch as the four year statute of limitations was applicable to the cause of action for quantum meruit. Mitchell v. Flandro, 95 Idaho 228, 506 P.2d 455 (1973).

In June 1971, the defendants were not certified public accountants, and, at that time, they clearly were not engaged in professional services for which they were licensed; therefore, the alleged acts of malpractice of the defendants cannot be denominated as of June, 1971, to be professional malpractice; hence, the two-year limitation period is inapplicable to the causes of action against them relating to that fiscal year (1970); rather the applicable statute of limitations would be the four year period of either this section or§ 5-224. Owyhee County v. Rife, 100 Idaho 91, 593 P.2d 995 (1979). Where water heater was installed in home pursuant to contract and, 18 years later, heater exploded, an action by homeowner alleging misfeasance in installation of water heater was a claim in tort, not contract, and statutes of limitations relating to contracts did not apply. Galbraith v. Vangas, Inc., 103 Idaho 912, 655 P.2d 119 (Ct. App. 1982).

Where the dissolution of the partnership occurred more than four years prior to the filing of the complaint, the statute of limitation barred plaintiff’s cause of action for an accounting of his partnership interest. D.A.R., Inc. v. Sheffer, 134 Idaho 141, 997 P.2d 602 (2000).

The running of the statute of limitations does not extinguish a debt. Statutes of limitations are limitations on a party’s right to bring an action. A statute of limitations does not apply (1) to defenses where no affirmative relief is sought, or (2) to self-help set-offs and pledges. Sallaz v. Rice, 161 Idaho 223, 384 P.3d 987 (2016).

Approval of Administrator’s Account not Collaterally Attacked.

Where an administrator’s payments of interest on mortgage indebtedness were approved by the probate court and the administrator’s account, including the final account, acknowledged liability on the note and mortgage, the order settling the final account and distributing the realty involved subject to the lien of the mortgage, which order was permitted to become final by a lapse of time, was conclusive on the validity of the mortgage and could not be collaterally attacked on the ground that the note and mortgage were barred by the statute of limitations. Horn v. Cornwall, 65 Idaho 115, 139 P.2d 757 (1943).

Burden of Proof.

Party alleging statute of limitations as a defense has the burden of proof. Pauley v. Salmon River Lumber Co., Inc., 74 Idaho 483, 264 P.2d 466 (1953).

Claims Against State.

A contract claim against the state will be deemed barred by the statute of limitations in a proceeding in the supreme court for a recommendatory decision advising the payment of such claim where the same is over ten (10) years past due and no excuse is shown for the delay of the claimant in presenting it. Small v. State, 10 Idaho 1, 76 P. 765 (1904).

Commencement of Running of Statute.

Statute begins to run against warrant-holder when his cause of action accrues. Little v. Emmett Irrigation Dist., 45 Idaho 485, 263 P. 40 (1928).

Where employment is continuous for indefinite term without time of payment being specified, statute does not begin to run until service ends. McCarthy v. Paris, 46 Idaho 165, 267 P. 232 (1928).

Where demand is necessary to set statute running, question as to what is reasonable time for making demand must depend upon particular circumstances of case. Johnston v. Keefer, 48 Idaho 42, 280 P. 324 (1929).

Action against trustee for repudiation of trust accrues upon discovery of repudiation. Cruzen v. Boise City, 58 Idaho 406, 74 P.2d 1037 (1937). Claim for services rendered by plaintiff in caring for testator and for his property during his lifetime was not barred until four years after testator’s death. Hubbard v. Ball, 59 Idaho 78, 81 P.2d 73 (1938).

In suit for specific performance of oral contract for purchase of mother’s farm by the plaintiff upon which plaintiff had made substantial improvements, the trial court was not required to make a finding relative to statute of limitations pleaded as a defense to the oral contract since plaintiff’s right for recovery for improvements did not accrue until after mother repudiated the oral contract of purchase. Watkins v. Watkins, 76 Idaho 316, 281 P.2d 1057 (1955).

An amendment to a complaint alleging partner to be continuing business to date though preventing appellant partner from active participation considered in conjunction with other material facts alleged would clearly state facts sufficient to constitute a cause of action not barred by the statute of limitations as set out in§ 5-216 or this section. Markstaller v. Markstaller, 80 Idaho 129, 326 P.2d 994 (1958).

Legal malpractice cause of action brought by decedent’s sons in 1974 in regard to probate of father’s estate in 1954 accrued in 1954 at the time of the alleged negligence, rather than in 1972, when the alleged negligence was discovered; thus, whether the limitation in§ 5-224 or this section was applicable, the action was barred, having been brought more than four years after its occurrence. Martin v. Clements, 98 Idaho 906, 575 P.2d 885 (1978).

The cause of action for an accountant’s malpractice for each fiscal year first accrued at the time of the actual occurrence of the illegal acts of malpractice, rather than the date when the auditors first discovered the defalcations. Owyhee County v. Rife, 100 Idaho 91, 593 P.2d 995 (1979).

Since the alleged promise of seller that certain property adjoining that of purchasers would be reserved for common use was not a lien or encumbrance, order of bankruptcy court authorizing sale of part of such property “free and clear of all liens and encumbrances” did not put the purchasers on notice of fraud and did not start the statute of limitations running on purchasers’ action to enforce the promise. Middlekauff v. Lake Cascade, Inc., 103 Idaho 832, 654 P.2d 1385 (1982).

Where the parties to an alleged oral agreement concerning the restoration and repair of a vintage automobile failed to reach any agreement as to the particular work to be performed, the time frame within which the restoration would be completed, or the dates when any payments would be due, the entire course of dealings between the parties involving the restoration of the vehicle constituted a single transaction, and a cause of action on the alleged agreement did not accrue until all of the work was completed and the automobile was ready to be picked up. Anderson v. Schwegel, 118 Idaho 362, 796 P.2d 1035 (Ct. App. 1990).

The statute of limitations does not begin to run until a claim accrues upon the breach of contract and, as sufficient and competent evidence to support a finding of breach was not available until 1988 when evidence of discovery of logging and the listing of the property for sale became apparent, there was substantial evidence to present the issue to the jury. Spence v. Howell, 126 Idaho 763, 890 P.2d 714 (1995).

The plaintiffs’ claim for specific performance of an agreement to convey real property was not barred by the statute of limitations where the statute did not begin to run until mortgages or loans encumbrancing the property at issue were extinguished, thereby fulfilling a condition in the agreement and requiring the defendant to convey the property. Simons v. Simons, 134 Idaho 824, 11 P.3d 20 (2000). Trial court did not err in holding that a property owner’s breach of contract claim against a well-drilling company was barred by the statute because the four-year limitations period began to run in August 2006 when construction of a well on the owner’s property was completed; hence, the owner’s April 6, 2011 action was untimely. Stapleton v. Jack Cushman Drilling, 153 Idaho 735, 291 P.3d 418 (2012).

Constructive Trust.

Any claim by the beneficiary of decedent’s life insurance policy for a constructive trust accrued at the time the insurance policy proceeds were distributed, and, where the claim was not filed until five years later, the claim was barred by the four year limitation contained in either§ 5-224 or this section. Witt v. Jones, 111 Idaho 165, 722 P.2d 474 (1986).

Counterclaims.

Although the four-year statute of limitation for an action on an oral contract under this section and the three-year period of limitation for an action for relief on the ground of fraud under§ 5-218 would not apply to a purely defensive counterclaim, they would apply to a counterclaim insofar as it seeks a sum in excess of the amount pleaded in the complaint. Full Circle, Inc. v. Schelling, 108 Idaho 634, 701 P.2d 254 (Ct. App. 1985).

Effect of Section.

The effect of this section is merely to bar the remedy, and not to raise a presumption of payment. Miller v. Monroe, 50 Idaho 726, 300 P. 362 (1931).

Court will not quiet title against lien unless debt secured thereby has been paid or statutory presumption of payment has arisen, although action on the debt is barred. Miller v. Monroe, 50 Idaho 726, 300 P. 362 (1931).

Incomplete Contracts.

Where a promise to repay money fails to include a date for repayment, courts imply a promise to repay the loan after a “reasonable time”, and the statute of limitations begins to run at a reasonable time after the loan was made. When parties to a contract have not agreed to a term essential to determine their rights and duties, the court supplies a term reasonable in the circumstances. Where no time is expressed in a contract for its performance, the law implies that it shall be performed within a reasonable time as determined by the subject matter of the contract, the situation of the parties, and the circumstances attending the performance. In re Davis, 554 B.R. 918 (Bankr. D. Idaho 2016).

Malpractice Action.

A cause of action presented in malpractice is not a contract action; the gist of a malpractice action is negligence, not a breach of contract of employment. Ogle v. De Sano, 107 Idaho 872, 693 P.2d 1074 (Ct. App. 1984).

Mandamus Action to Compel Reassessment.

Pleading and Practice.

Where a mandamus to compel reassessment of property within a special or local improvement district was brought some eighteen (18) months after actual notice of the deficiency through the city clerk’s fault, the action was not barred by limitation. Maguire v. Whillock, 63 Idaho 630, 124 P.2d 248 (1942). Pleading and Practice.

Where a cause of action is stated and the answer pleads the bar of the statute of limitations, it is error to enter judgment in favor of defendant on the pleadings, even though it should be barred as shown on the face of the complaint. Chemung Mining Co. v. Hanley, 9 Idaho 786, 77 P. 226 (1904); McLeod v. Rogers, 28 Idaho 412, 154 P. 970 (1916).

The statute must be specially pleaded and can not be raised by general demurrer on the ground that the complaint does not state facts sufficient to constitute a cause of action. Chemung Mining Co. v. Hanley, 9 Idaho 786, 77 P. 226 (1904).

Privity of Contract.

Privity of contract is a prerequisite for recovery of economic loss on the grounds of implied warranty. Salmon Rivers Sportsman Camps, Inc. v. Cessna Aircraft Co., 97 Idaho 348, 544 P.2d 306 (1975).

Proof Required.

Where the defendant raised the oral-contract statute of limitation in his answer to claim, nothing more was required to prove the defense, as the plaintiff’s case-in-chief included evidence of the date of each item charged; therefore, the issue was not barred from consideration on appeal. Modern Mills, Inc. v. Havens, 112 Idaho 1101, 739 P.2d 400 (Ct. App. 1987).

Unjust Enrichment.

An action based on the theory of unjust enrichment presupposes an obligation which is implied by law and is not a true contract; however, it partakes of the nature of a contract and is governed by the statute of limitations applicable to oral contracts. Templeton Patents, Ltd. v. J.R. Simplot Co., 220 F. Supp. 48 (D. Idaho 1963), aff’d, 336 F.2d 261 (9th Cir. 1964).

Written or Oral Contract.

A principal’s obligation to reimburse a surety who has paid the debt is not founded upon a written instrument within the meaning of the statute of limitations. Tritthart v. Tritthart, 24 Idaho 186, 133 P. 121 (1913).

Pleading and Practice.

Where a cause of action is stated and the answer pleads the bar of the statute of limitations, it is error to enter judgment in favor of defendant on the pleadings, even though it should be barred as shown on the face of the complaint. Chemung Mining Co. v. Hanley, 9 Idaho 786, 77 P. 226 (1904); McLeod v. Rogers, 28 Idaho 412, 154 P. 970 (1916).

The statute must be specially pleaded and can not be raised by general demurrer on the ground that the complaint does not state facts sufficient to constitute a cause of action. Chemung Mining Co. v. Hanley, 9 Idaho 786, 77 P. 226 (1904).

Privity of Contract.

Privity of contract is a prerequisite for recovery of economic loss on the grounds of implied warranty. Salmon Rivers Sportsman Camps, Inc. v. Cessna Aircraft Co., 97 Idaho 348, 544 P.2d 306 (1975).

Proof Required.

Where the defendant raised the oral-contract statute of limitation in his answer to claim, nothing more was required to prove the defense, as the plaintiff’s case-in-chief included evidence of the date of each item charged; therefore, the issue was not barred from consideration on appeal. Modern Mills, Inc. v. Havens, 112 Idaho 1101, 739 P.2d 400 (Ct. App. 1987).

Unjust Enrichment.

An action based on the theory of unjust enrichment presupposes an obligation which is implied by law and is not a true contract; however, it partakes of the nature of a contract and is governed by the statute of limitations applicable to oral contracts. Templeton Patents, Ltd. v. J.R. Simplot Co., 220 F. Supp. 48 (D. Idaho 1963), aff’d, 336 F.2d 261 (9th Cir. 1964).

Written or Oral Contract.

A principal’s obligation to reimburse a surety who has paid the debt is not founded upon a written instrument within the meaning of the statute of limitations. Tritthart v. Tritthart, 24 Idaho 186, 133 P. 121 (1913).

Am. Jur. 2d.

C.J.S.

Compiler’s Notes.

Section 1 of S.L. 1974, ch. 240, provided: “The purpose of this act is to clarify the law with respect to the statute of limitations applied to bonds of public officials.”

Effective Dates.

Section 3 of S.L. 1974, ch. 240, provided: “An emergency existing therefor, which emergency is hereby declared to exist, this act shall be in full force and effect on and after its passage and approval, and shall apply to all causes of action against any surety on any such bond or undertaking, which said causes of action shall have been discovered by the state of Idaho or any political subdivision thereof within three (3) years immediately preceding the date of passage and approval of this act.” Approved April 3, 1974.

Amendment of Complaint.

Where, in an action for damage to mining ground caused by grease and oil deposited in stream, the original complaint contained general allegations applicable to the undredged portions of the claims as well as to the portions which had been dredged, an amended complaint specifically alleging damage to the undredged portions did not state a new cause of action with respect to the running of the statute of limitations. Idaho Gold Dredging Corp. v. Boise Payette Lumber Co., 54 Idaho 765, 37 P.2d 407 (1934).

Applicability.

Where a former client’s disability checks were alleged to have been cashed and spent by the law firm which received the checks, the cause of action was not subject to the statute of limitations for legal malpractice under§ 5-219(4) or the statute of limitations for fraud under subsection (4) of this section. It was an action for conversion under§ 28-3-118(7); however, under any of these sections, the limitations period ran before plaintiff filed suit. McCormack v. Caldwell, 152 Idaho 15, 266 P.3d 490 (Ct. App. 2011). — Federal courts.

Amendment of Complaint.

Where, in an action for damage to mining ground caused by grease and oil deposited in stream, the original complaint contained general allegations applicable to the undredged portions of the claims as well as to the portions which had been dredged, an amended complaint specifically alleging damage to the undredged portions did not state a new cause of action with respect to the running of the statute of limitations. Idaho Gold Dredging Corp. v. Boise Payette Lumber Co., 54 Idaho 765, 37 P.2d 407 (1934).

Applicability.

Where a former client’s disability checks were alleged to have been cashed and spent by the law firm which received the checks, the cause of action was not subject to the statute of limitations for legal malpractice under§ 5-219(4) or the statute of limitations for fraud under subsection (4) of this section. It was an action for conversion under§ 28-3-118(7); however, under any of these sections, the limitations period ran before plaintiff filed suit. McCormack v. Caldwell, 152 Idaho 15, 266 P.3d 490 (Ct. App. 2011). Section 30-21-810 provides a cause of action for parties who suffer damages as a result of a party’s failure to file a certificate of assumed business name. In a case where a plaintiff has been misled to his or her prejudice resulting in a failure to timely name a proper defendant before the expiration of the statute of limitations, the plaintiff’s damages will include the lost opportunity for recovery in the original action. In order to recover in such a case in which personal injury is alleged, the plaintiff must show that he or she would have prevailed in his or her personal injury action and the amount of damages he or she would have recovered, in addition to any other damages that may have been proximately caused by the defendant’s breach of its statutory duty. As this is a statutory remedy, a party must bring this action within 3 years of the accrual of the cause of action, pursuant to this section. Gallagher v. Best Western Cottontree Inn, 161 Idaho 542, 388 P.3d 57 (2017).

Application in General.

The statute of limitations does not apply to pure defenses, but only where affirmative relief is sought. Frank v. Davis, 34 Idaho 678, 203 P. 287 (1921).

The statute of limitations is general, is to be liberally construed, and must be applied to all cases where an exception is not specifically made. Mendini v. Milner, 47 Idaho 439, 276 P. 313 (1929).

Statutes of limitations apply both to equity and law cases. Steinour v. Oakley State Bank, 49 Idaho 293, 287 P. 949 (1930).

Action to revive judgment after a failure of title on execution sale was governed by this section. Gertztowt v. Humphrey, 53 Idaho 631, 27 P.2d 64 (1933).

Counterclaim by corporation to recover damages from officer of corporation for breach of trust is not controlled by 3 year statute set forth in this section, but is governed by four year statutes set forth in§§ 5-217, 5-224. Melgard v. Moscow Idaho Seed Co., 73 Idaho 265, 251 P.2d 546 (1952).

When purchaser sought to recover on the case for consequential damages to real property, statute of limitations was not the three year statute for actions of trespass upon real property but the four year statute set forth in§ 5-224. Woodland v. Lyon, 78 Idaho 79, 298 P.2d 380 (1956).

In action to recover on surety bonds issued by defendant to warehouseman where intervenor who had given grain to warehouseman to sell to prospective purchaser and, when such sale had not materialized, had received two warehouse receipts from warehouseman made demand on warehouseman for grain on June 25, 1956, but did not bring action until December 17, 1959, such action was barred by the statute of limitations. United States v. Fireman’s Fund Ins. Co., 191 F. Supp. 317 (D. Idaho 1961).

Where a truck was leased in 1969, and damaged in a collision on March 16, 1971, the three year statute on tort claims barred insured lessee’s tort claim as of March 16, 1974, and the insurer’s claim by subrogation was likewise barred since the subrogee had no greater rights and was subject to the same statute of limitations. May Trucking Co. v. International Harvester Co., 97 Idaho 319, 543 P.2d 1159 (1975).

— Action to Quiet Title.

An individuals with disabilities education act claim for attorneys’ fees is most analogous to an independent action predicated on statutory liability, which is governed by a three year limitation in this section; accordingly, since parents’ attorneys’ fees claim was filed less than three years after a hearing officer issued his decision, it was timely. Meridian Joint Sch. Dist. No. 2 v. D.A., 2013 U.S. Dist. LEXIS 90683 (D. Idaho June 25, 2013). — Action to Quiet Title.

An action to quiet title and to set aside an alleged void deed was not barred by this section nor any other statute of limitations and summary judgment on this ground was improper. Argyle v. Slemaker, 99 Idaho 544, 585 P.2d 954 (1978).

— Bank Deposits.

A depositor who authorized bank officer to withdraw part of his deposit to invest in a mortgage had a right to demand his deposit on learning that the officer had withdrawn and embezzled the fund and not made the loan, and the bank could not successfully plead the bar of this statute, but could only rely on§ 5-223. Carr v. Weiser State Bank, 57 Idaho 599, 66 P.2d 1116 (1937).

— Delinquent Property Taxes.

The time limit for an action for delinquent property taxes is in this section. Childers v. Wolters, 115 Idaho 527, 768 P.2d 790 (Ct. App. 1988).

An action for the collection of delinquent property taxes for the years 1983-1985 which was commenced in 1986 was not time-barred as to the tax owed for any of those years. Childers v. Wolters, 115 Idaho 527, 768 P.2d 790 (Ct. App. 1988).

— Easements.

This section does not apply to actions involving question of easements, since they are real property within meaning of law. Beasley v. Engstrom, 31 Idaho 14, 168 P. 1145 (1917); Last Chance Ditch Co. v. Sawyer, 35 Idaho 61, 204 P. 654 (1922).

— Effect of Amendment.

The 1974 amendment to this section did not create an exception for the discovery of defalcations which occur later than the three-year statute of limitations because the 1974 amendment changed the existing law rather than announcing it since, when a statute is amended, it is presumed to have a meaning different from that accorded to it before the amendment. Lincoln County v. Fidelity & Deposit Co., 102 Idaho 489, 632 P.2d 678 (1981).

— Federal Courts.

While the statute does not apply in bankruptcy proceedings, if a plenary action by the bankrupt against a judgment creditor would have been barred by the statute, the bankrupt should be held barred by the laches from setting up his claim in the bankruptcy proceedings. Pindel v. Holgate, 221 F. 342 (9th Cir. 1915).

Action by trustee in bankruptcy to recover a preferential transfer was governed by federal, and not by state, statute of limitations. Meikle v. Drain, 69 F.2d 290 (9th Cir. 1934).

Although state statute of limitations was not binding on federal court in action for rescission of contract, the court would be guided by it. Oregon Mtg. Co. v. Renner, 96 F.2d 429 (9th Cir. 1938). Federal court, in applying state statute of limitations, will adopt the interpretation placed on such statute by the highest court of the state in which the cause of action arose. Aker v. Sears, Roebuck & Co., 38 F. Supp. 741 (D. Idaho 1941).

Liability of private persons under the federal civil rights statute, 42 U.S.C. § 1983, was governed by the statute of limitations provided in this section. Gowin v. Altmiller, 455 F. Supp. 743 (D. Idaho 1978), aff’d, 647 F.2d 170 (9th Cir. 1981). But see Idaho State Bar v. Tway, 128 Idaho 794, 919 P.2d 323 (1996).

A civil rights action filed pursuant to 42 U.S.C. § 1983 is an action upon a liability created by statute and, thus, subject to the three-year statute of limitations under this section; however, federal law determines when the limitations period begins to run. Gowin v. Altmiller, 663 F.2d 820 (9th Cir. 1981). But see Idaho State Bar v. Tway, 128 Idaho 794, 919 P.2d 323 (1996).

— Judgment, Actions On.

This section does not govern action on judgment against trustees of defunct corporation. Caxton Printers v. Ulen, 59 Idaho 688, 86 P.2d 468 (1939).

— Malpractice.

Action for malpractice is not based on contract but on negligence and is governed by the two-year statute. Trimming v. Howard, 52 Idaho 412, 16 P.2d 661 (1932).

— Retroactivity of Amendment.

The 1974 legislative amendment to subdivision 1. of this section is not retroactive in its application to January 1974, since a statute is not retroactive under§ 73-101 unless expressly so declared, and the only express declaration of retroactivity in this amendment is to causes of action discovered within three years prior to its passage, on April 3, 1974. Lincoln County v. Fidelity & Deposit Co., 102 Idaho 489, 632 P.2d 678 (1981).

— Setoff and Counterclaim.

The statute applies to a sum attempted to be set off. Wonnacott v. Kootenai County, 32 Idaho 342, 182 P. 353 (1919).

This section is not applicable to action to recover deposit which bank credited to depositor’s note. Prewett v. First Nat’l Bank, 45 Idaho 451, 262 P. 1057 (1928).

— Wiretapping.

Based on its determination that in the case of wiretapping the damage is immediate, the statute of limitations begins to run no later than the last day of wiretapping. Knudsen v. Agee, 128 Idaho 776, 918 P.2d 1221 (1996).

— Worker’s Compensation Claim.

This section has no application to employee’s claim for compensation. Eldridge v. Idaho State Penitentiary, 54 Idaho 213, 30 P.2d 781 (1934).

Commencement of Running of Statute.

A proceeding to revive an original judgment does not accrue until the period of redemption has expired. Cantwell v. McPherson, 3 Idaho 721, 34 P. 1095 (1893). Statute began to run against liability of city treasurer on his bond when he failed to pay over the city’s funds when his term of office expired. City of St. Anthony v. Mason, 49 Idaho 717, 291 P. 1067 (1930).

Statute of limitations as to collection of transfer tax began to run upon death of deceased, and was not tolled by the provision thereof that the tax should remain a lien upon real estate upon which it is chargeable until the same is paid. Douglas v. Moscow, 50 Idaho 104, 294 P. 334 (1930).

In cases of periodic flooding, the statute of limitations begins to run from the date of each flooding. Lavin v. Panhandle Lumber Co., 51 Idaho 1, 1 P.2d 186 (1931).

Action by insurance commissioner of state of Washington to recover an assessment levied for defendant’s pro rata liability of the indebtedness of an automobile insurance exchange was governed by this section. Fishback v. Jensen, 52 Idaho 61, 11 P.2d 361 (1932).

Motion adopted by highway board that the action of the secretary in purchasing joint stock and land bank bonds, pursuant to instructions of the board, be ratified, and the entry of such motion in the minutes did not set the statute of limitations running against action by the district to recover from members of the board funds of the board. Filer Hwy. Dist. ex rel. Alworth v. Shearer, 54 Idaho 201, 30 P.2d 199 (1934).

Where the plaintiff was arrested in July, 1974 on a criminal complaint of embezzlement and imprisoned for one day before being released on his own recognizance, and following his conviction was again imprisoned, his cause of action under the federal civil rights statute, 42 U.S.C. § 1983 arose at the time of his first imprisonment and the three-year statute of limitations under this section was not tolled, under§ 5-230, by his subsequent imprisonment; accordingly, the filing of his civil rights action in August, 1977 was not timely and the action was barred. Gowin v. Altmiller, 663 F.2d 820 (9th Cir. 1981). But see Idaho State Bar v. Tway, 128 Idaho 794, 919 P.2d 323 (1996).

Where county treasurer and tax collector served successive two-year terms of office, an action brought by county to recover under performance bonds due to an official’s misappropriation of funds and failure to collect delinquent taxes was barred by the three-year statute of limitations under subdivision 1. of this section where discovery of the misdeeds occurred more than three years after the particular term of office ended, since the action accrued at the end of each individual term of office. Lincoln County v. Fidelity & Deposit Co., 102 Idaho 489, 632 P.2d 678 (1981).

All of the possible dates upon which the running of the statute of limitation could have commenced were more than three years prior to the date when the action was filed; therefore, the action was brought beyond the three-year limitation and should not have been decided on the merits by the magistrate. Jemmett v. McDonald, 136 Idaho 277, 32 P.3d 669 (2001).

Although the business owners argued that a lien filed with the secretary of state under§ 72-1360, seeking to enjoin the enforcement of a lien for unpaid unemployment insurance contributions filed by the Idaho department of labor, was the commencement of a civil action, they offered no authority or argument to support that contention; the general statute of limitations did not apply to the issuance of a writ of execution because it was neither an action nor a special proceeding of a civil nature, such that the district court did not err in holding that the filing of the lien was not barred by§ 5-218. Beale v. State, 139 Idaho 356, 79 P.3d 715 (2003).

Where the company had sufficient facts to know, or with the exercise of reasonable diligence, should have known of the corporation’s alleged fraudulent concealment and fraudulent misrepresentation no later than July 1990, the company’s fraudulent concealment and fraudulent misrepresentation claims were barred by the three-year statute of limitations under this section. Nerco Minerals Co. v. Morrison Knudsen Corp., 140 Idaho 144, 90 P.3d 894 (2004). Statute began to run against liability of city treasurer on his bond when he failed to pay over the city’s funds when his term of office expired. City of St. Anthony v. Mason, 49 Idaho 717, 291 P. 1067 (1930).

Statute of limitations as to collection of transfer tax began to run upon death of deceased, and was not tolled by the provision thereof that the tax should remain a lien upon real estate upon which it is chargeable until the same is paid. Douglas v. Moscow, 50 Idaho 104, 294 P. 334 (1930).

In cases of periodic flooding, the statute of limitations begins to run from the date of each flooding. Lavin v. Panhandle Lumber Co., 51 Idaho 1, 1 P.2d 186 (1931).

Action by insurance commissioner of state of Washington to recover an assessment levied for defendant’s pro rata liability of the indebtedness of an automobile insurance exchange was governed by this section. Fishback v. Jensen, 52 Idaho 61, 11 P.2d 361 (1932).

Motion adopted by highway board that the action of the secretary in purchasing joint stock and land bank bonds, pursuant to instructions of the board, be ratified, and the entry of such motion in the minutes did not set the statute of limitations running against action by the district to recover from members of the board funds of the board. Filer Hwy. Dist. ex rel. Alworth v. Shearer, 54 Idaho 201, 30 P.2d 199 (1934).

Where the plaintiff was arrested in July, 1974 on a criminal complaint of embezzlement and imprisoned for one day before being released on his own recognizance, and following his conviction was again imprisoned, his cause of action under the federal civil rights statute, 42 U.S.C. § 1983 arose at the time of his first imprisonment and the three-year statute of limitations under this section was not tolled, under§ 5-230, by his subsequent imprisonment; accordingly, the filing of his civil rights action in August, 1977 was not timely and the action was barred. Gowin v. Altmiller, 663 F.2d 820 (9th Cir. 1981). But see Idaho State Bar v. Tway, 128 Idaho 794, 919 P.2d 323 (1996).

Where county treasurer and tax collector served successive two-year terms of office, an action brought by county to recover under performance bonds due to an official’s misappropriation of funds and failure to collect delinquent taxes was barred by the three-year statute of limitations under subdivision 1. of this section where discovery of the misdeeds occurred more than three years after the particular term of office ended, since the action accrued at the end of each individual term of office. Lincoln County v. Fidelity & Deposit Co., 102 Idaho 489, 632 P.2d 678 (1981).

All of the possible dates upon which the running of the statute of limitation could have commenced were more than three years prior to the date when the action was filed; therefore, the action was brought beyond the three-year limitation and should not have been decided on the merits by the magistrate. Jemmett v. McDonald, 136 Idaho 277, 32 P.3d 669 (2001).

Although the business owners argued that a lien filed with the secretary of state under§ 72-1360, seeking to enjoin the enforcement of a lien for unpaid unemployment insurance contributions filed by the Idaho department of labor, was the commencement of a civil action, they offered no authority or argument to support that contention; the general statute of limitations did not apply to the issuance of a writ of execution because it was neither an action nor a special proceeding of a civil nature, such that the district court did not err in holding that the filing of the lien was not barred by§ 5-218. Beale v. State, 139 Idaho 356, 79 P.3d 715 (2003).

Constructive Fraud.

Where the company had sufficient facts to know, or with the exercise of reasonable diligence, should have known of the corporation’s alleged fraudulent concealment and fraudulent misrepresentation no later than July 1990, the company’s fraudulent concealment and fraudulent misrepresentation claims were barred by the three-year statute of limitations under this section. Nerco Minerals Co. v. Morrison Knudsen Corp., 140 Idaho 144, 90 P.3d 894 (2004). Constructive Fraud.

Fraud statute of limitations governed constructive fraud claims because the elements of a constructive fraud claim were essentially the same as the elements of fraud claims; the statute of limitations applies to constructive fraud claims even though those claims may also involve a breach of fiduciary duty, and it is left for the trial court to determine whether a plaintiff’s cause of action is, in substance, a true constructive fraud claim, a breach of fiduciary duty claim, or something else. Doe v. BSA, 159 Idaho 103, 356 P.3d 1049 (2015).

Because the fraud statute of limitations applies to constructive fraud claims, the statute’s discovery rule also applies to constructive fraud claims. Doe v. BSA, 159 Idaho 103, 356 P.3d 1049 (2015).

Enforcement of Public Right.

Where the actions of the department of transportation were consistent with the exercise of its police powers, as authorized by the legislature, their actions were not barred by the statute of limitations, because statutes of limitations do not operate against the state when the state is acting in its sovereign capacity to enforce a public right. Young Elec. Sign Co. v. State ex rel. Winder, 135 Idaho 804, 25 P.3d 117 (2001).

Failure to Cite Particular Section.

Since the particular section of the statute of limitations upon which defendant relied was not designated in the trial court as required under Idaho R. Civ. P. 9(h), the availability of this section as a defense was not considered on appeal. Transamerica Ins. Co. v. Widmark, 116 Idaho 7, 773 P.2d 275 (1989).

Fiduciary Duty.

While a constructive fraud claim may include a breach of fiduciary duty, it does not necessarily follow that a breach of fiduciary duty always results in constructive fraud, nor is a breach of fiduciary duty required to establish constructive fraud; thus, a constructive fraud claim is not removed from the fraud statute of limitations merely because it involves a breach of fiduciary duty. Doe v. BSA, 159 Idaho 103, 356 P.3d 1049 (2015).

Fraud.

In dispute between siblings over a failed business partnership, brother failed to state a cause of action for fraud based on sister’s false statement that her husband would commit suicide if plaintiffs sued them, because it was too vague and insubstantial to constitute duress, there was opportunity to determine the reality of the threat, the brother was represented by counsel, and the threats of suicide were not representations upon which he could justifiably rely. Country Cove Dev., Inc. v. May, 143 Idaho 595, 150 P.3d 288 (2006).

Where fraud was alleged as an affirmative defense and the court was not provided with records the purchaser actually reviewed such that the court could analyze the records and determine whether they would have disclosed the falsity of the alleged misrepresentations, the date from which the statute of limitations should run could not be conclusively determined. Golden West Holdings, LLC v. BBT Holdings, LLC, 2010 U.S. Dist. LEXIS 123819 (D. Idaho Nov. 10, 2010). In an action against the Boy Scouts of America, and an affiliated church, arising from the alleged molestation of a boy scout by a troop leader during the late 1960’s, the three-year fraud statute of limitations under subsection (4) of this section, rather than the two-year personal injury statute of limitations under§ 5-219(4), applied to the former boy scout’s claim of institutional fraud by omission; the former boy scout specifically alleged fraud and assumed the heavy duty of proving an intentional tort by clear and convincing evidence. Doe v. Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints, 837 F. Supp. 2d 1145 (D. Idaho 2011).

Chapter 7 debtor had to repay $48,980 which she received from a public housing authority after she rented one half of a duplex to her son and daughter-in-law, even though her son and daughter-in-law were eligible to receive Section 8 housing assistance, because she falsely stated that she was not related to her son and daughter-in-law when she signed several documents the authority used to approve her application. The action was not time-barred under subsection (4) because the authority did not learn that the debtor and her tenants were related until 2009. Boise City/Ada County Housing Auth. v. O’Brien (In re O’Brien), 2011 Bankr. LEXIS 3082 (Bankr. D. Idaho Aug. 10, 2011).

Jury Theory for Award.

In an action on a counterclaim, where the jury was instructed on the elements necessary for recovery both for breach of contract and for fraud, but the verdict form failed to designate the theory upon which the defendant was entitled to relief, the trial court erred in failing to require the jury to state the theory upon which its award was based, since an award for breach of contract may have exceeded the limitations period imposed by§ 28-2-607(3)(a), and an award for fraud may have been time-barred under this section. Instructing the jury to distinguish between the fraud and contract theories would also protect against a forbidden possible double recovery resulting from an award on both theories. Full Circle, Inc. v. Schelling, 108 Idaho 634, 701 P.2d 254 (Ct. App. 1985).

— Pleading or Practice.

A claim which asserted that the attorney’s conflict of interest was not properly disclosed did not allege the elements of a cause of action for intentional fraud so as to come within the three-year limitations period of subdivision 4 of this section. Pichon v. Benjamin, 108 Idaho 852, 702 P.2d 890 (Ct. App. 1985).

Pleading and Practice.

Trial court did not err in granting summary judgment for an insurer in an alleged insurance fraud matter, as a letter showed that the insured could have had early knowledge of the claimed fraud and alleged misrepresentations, and the insured failed to contradict, in response to the summary judgment motion, the insurer’s assertions, resulting in no factual dispute. McCorkle v. Northwestern Mut. Life Ins. Co., 141 Idaho 550, 112 P.3d 838 (Ct. App. 2005).

Subd. 1. Liabilities Created by Statute.

A statutory liability within the meaning of this subdivision is one that depends for its existence on the enactment of a statute and not on the contract of the parties. Dietrich v. Copeland Lumber Co., 28 Idaho 312, 154 P. 626 (1916).

The phrase, “liability created by statute,” means a liability which would not exist but for the statute and does not extend to an action based on the defendant’s alleged negligence in addition to the statutory liability, or to an action in which any element of agreement enters, or to a constitutional liability instead of a mere statutory one. Dietrich v. Copeland Lumber Co., 28 Idaho 312, 154 P. 626 (1916). In an action against the Boy Scouts of America, and an affiliated church, arising from the alleged molestation of a boy scout by a troop leader during the late 1960’s, the three-year fraud statute of limitations under subsection (4) of this section, rather than the two-year personal injury statute of limitations under§ 5-219(4), applied to the former boy scout’s claim of institutional fraud by omission; the former boy scout specifically alleged fraud and assumed the heavy duty of proving an intentional tort by clear and convincing evidence. Doe v. Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints, 837 F. Supp. 2d 1145 (D. Idaho 2011).

Chapter 7 debtor had to repay $48,980 which she received from a public housing authority after she rented one half of a duplex to her son and daughter-in-law, even though her son and daughter-in-law were eligible to receive Section 8 housing assistance, because she falsely stated that she was not related to her son and daughter-in-law when she signed several documents the authority used to approve her application. The action was not time-barred under subsection (4) because the authority did not learn that the debtor and her tenants were related until 2009. Boise City/Ada County Housing Auth. v. O’Brien (In re O’Brien), 2011 Bankr. LEXIS 3082 (Bankr. D. Idaho Aug. 10, 2011).

Jury Theory for Award.

In an action on a counterclaim, where the jury was instructed on the elements necessary for recovery both for breach of contract and for fraud, but the verdict form failed to designate the theory upon which the defendant was entitled to relief, the trial court erred in failing to require the jury to state the theory upon which its award was based, since an award for breach of contract may have exceeded the limitations period imposed by§ 28-2-607(3)(a), and an award for fraud may have been time-barred under this section. Instructing the jury to distinguish between the fraud and contract theories would also protect against a forbidden possible double recovery resulting from an award on both theories. Full Circle, Inc. v. Schelling, 108 Idaho 634, 701 P.2d 254 (Ct. App. 1985).

— Pleading or Practice.

A claim which asserted that the attorney’s conflict of interest was not properly disclosed did not allege the elements of a cause of action for intentional fraud so as to come within the three-year limitations period of subdivision 4 of this section. Pichon v. Benjamin, 108 Idaho 852, 702 P.2d 890 (Ct. App. 1985).

Pleading and Practice.

Trial court did not err in granting summary judgment for an insurer in an alleged insurance fraud matter, as a letter showed that the insured could have had early knowledge of the claimed fraud and alleged misrepresentations, and the insured failed to contradict, in response to the summary judgment motion, the insurer’s assertions, resulting in no factual dispute. McCorkle v. Northwestern Mut. Life Ins. Co., 141 Idaho 550, 112 P.3d 838 (Ct. App. 2005).

Subd. 1. Liabilities Created by Statute.

A statutory liability within the meaning of this subdivision is one that depends for its existence on the enactment of a statute and not on the contract of the parties. Dietrich v. Copeland Lumber Co., 28 Idaho 312, 154 P. 626 (1916).

The phrase, “liability created by statute,” means a liability which would not exist but for the statute and does not extend to an action based on the defendant’s alleged negligence in addition to the statutory liability, or to an action in which any element of agreement enters, or to a constitutional liability instead of a mere statutory one. Dietrich v. Copeland Lumber Co., 28 Idaho 312, 154 P. 626 (1916). Action for damages from water-soaking defendants’ land was not governed by this section. Muncey v. Security Ins. Co., 43 Idaho 441, 252 P. 870 (1927).

The liability of a trustee is not one created by statute within this section. Cruzen v. Boise City, 58 Idaho 406, 74 P.2d 1037 (1937).

Action against city on local improvement district bonds, based on embezzlement by city clerk of special assessments levied therefor, was not governed by this subdivision, since it arose by reason of defendant’s breach of trust rather than by statute. Cruzen v. Boise City, 58 Idaho 406, 74 P.2d 1037 (1937).

When parents of a student found entitled to an individualized educational evaluation at public expense sought attorneys’ fees, the parents timely sought the fees because the claim was more like an individual claim than a collateral proceeding, as a hearing officer could not award the fees, and such treatment promoted the purposes of the Individuals with Disabilities Education Act, so the limitations period for statutory liabilities applied. Meridian Joint Sch. Dist. No. 2 v. D. A., 792 F.3d 1054 (9th Cir. 2015).

— Bond, Action on.

In an action by a surety upon a bond of a bank securing repayment of a city’s deposits of public funds for amount allegedly paid in excess of surety’s pro rata share of amount due city, three-year limitation on action on liability created by statute other than penalty or forfeiture was inapplicable to a cross-complaint for amount allegedly paid by the receiver of the bank, in excess of the pro rata share chargeable to bonds pledged by bank to secure repayment of deposits. Commercial Cas. Ins. Co. v. Boise City Nat’l Bank, 61 Idaho 124, 98 P.2d 637 (1940).

— Counties, Liabilities of.

When a new county was formed assuming the obligations of the old county, the statute of limitations begins to run from the creation of the new county and not from the maturity of the original debt. Robertson v. Blaine County, 90 F. 63 (9th Cir. 1898).

When one county is carved out of a portion of another and adjustment and settlement of all accounts is made, the liability of one county to the other is created by statute and an action to enforce such liability must be brought within three years. Canyon County v. Ada County, 5 Idaho 686, 51 P. 748 (1897). See also Blaine County v. Butte County, 45 Idaho 193, 261 P. 338 (1927).

The statute of limitations runs against the county in a civil action brought by the county against an ex-clerk of the district court, who was an ex-officio auditor and recorder of such county, for alleged illegal fees and compensation collected by him from the county during the term of his office. Bannock County v. Bell, 8 Idaho 1, 65 P. 710 (1901).

Action to recover moneys collected by defendant as assessor and tax collector and not paid over to the county was governed by this section. Canyon County ex rel. Griffiths v. Moore, 34 Idaho 732, 203 P. 466 (1921).

In action by one county of state against another upon fixed liability, action must be commenced within three-year limitation provided in this section. Blaine County v. Butte County, 45 Idaho 193, 261 P. 338 (1927). In city’s action against a county for back taxes, the plaintiff city’s claims were based on “a liability created by statute,” and the three-year statute of limitations contained in subdivision 1 of this section applied. City of Rexburg v. Madison County, 115 Idaho 88, 764 P.2d 838 (1988).

— Public Officers, Liabilities of.

An action against the sureties of an officer to recover an amount allowed to said officer for services after the expiration of his term of office is within the provisions of this section. Ada County v. Ellis, 5 Idaho 333, 48 P. 1071 (1897).

This section has no application to an action by a county to recover balance of fees due for recording of instruments. Lincoln County v. Twin Falls N. Side Land & Water Co., 23 Idaho 433, 130 P. 788 (1913).

Action against assessor to recover because of failure to pay over county money is liability created by statute. Canyon County ex rel. Griffiths v. Moore, 34 Idaho 732, 203 P. 466 (1921).

Action on bond of city treasurer to recover funds deposited without authority in a bank which later failed is an action based on a liability created by statute. City of St. Anthony v. Mason, 49 Idaho 717, 291 P. 1067 (1930).

— Reimbursement of State Support Payments.

Where putative father failed to establish prejudice, one of four elements of his defense of laches in his attempt to defeat state’s claim for reimbursement of state’s support payments on behalf of minor daughter, subdivision 1 of this section precluded the state from seeking reimbursement for all expenditures, but allowed it to seek reimbursement of expenditures within the three year statute of limitations of this section and allowed for reimbursement of future expenditures. State, Dep’t of Health & Welfare ex rel. Washington ex rel. Nicklaus v. Annen, 126 Idaho 691, 889 P.2d 720 (1995).

— Stockholders’ Liabilities.

An action against the president and secretary of a corporation based on their statutory liability to answer for its contractual obligations is barred within three years. Dietrich v. Copeland Lumber Co., 28 Idaho 312, 154 P. 626 (1916).

This section is not applicable to action against directors and stockholders of bank for withdrawing assets of the bank. Weil v. Defenbach, 31 Idaho 258, 170 P. 103 (1918). See also Stoltz v. Scott, 23 Idaho 104, 129 P. 340 (1912); Weil v. Defenbach, 36 Idaho 37, 208 P. 1025 (1922); Jenkins v. Standrod, 46 Idaho 614, 269 P. 586 (1928).

Stockholder’s liability for corporate indebtedness, to the amount of his unpaid stock subscription, is not a liability created by statute. Jensen v. Aikman, 32 Idaho 261, 181 P. 525 (1919). See also Grimsmoe v. Kendrick, 42 Idaho 491, 247 P. 746 (1926).

— Taxes, Liability for.

Where owner of delinquency tax certificates within one year after board of county commissioners made its order declaring certificates invalid filed action against county, action was not barred by any statute of limitation. Wilson v. Twin Falls County, 47 Idaho 527, 277 P. 1114 (1929).

Where more than three years had elapsed since taxes became delinquent and no facts tolling three-year statute of limitation prescribed by this section were pleaded in action to enforce lien, the action was barred. Lemhi County ex rel. Gilbreath v. Boise Livestock Loan Co., 47 Idaho 712, 278 P. 214 (1929). In city’s action against a county for back taxes, the plaintiff city’s claims were based on “a liability created by statute,” and the three-year statute of limitations contained in subdivision 1 of this section applied. City of Rexburg v. Madison County, 115 Idaho 88, 764 P.2d 838 (1988).

— Public Officers, Liabilities of.

An action against the sureties of an officer to recover an amount allowed to said officer for services after the expiration of his term of office is within the provisions of this section. Ada County v. Ellis, 5 Idaho 333, 48 P. 1071 (1897).

This section has no application to an action by a county to recover balance of fees due for recording of instruments. Lincoln County v. Twin Falls N. Side Land & Water Co., 23 Idaho 433, 130 P. 788 (1913).

Action against assessor to recover because of failure to pay over county money is liability created by statute. Canyon County ex rel. Griffiths v. Moore, 34 Idaho 732, 203 P. 466 (1921).

Action on bond of city treasurer to recover funds deposited without authority in a bank which later failed is an action based on a liability created by statute. City of St. Anthony v. Mason, 49 Idaho 717, 291 P. 1067 (1930).

— Reimbursement of State Support Payments.

Where putative father failed to establish prejudice, one of four elements of his defense of laches in his attempt to defeat state’s claim for reimbursement of state’s support payments on behalf of minor daughter, subdivision 1 of this section precluded the state from seeking reimbursement for all expenditures, but allowed it to seek reimbursement of expenditures within the three year statute of limitations of this section and allowed for reimbursement of future expenditures. State, Dep’t of Health & Welfare ex rel. Washington ex rel. Nicklaus v. Annen, 126 Idaho 691, 889 P.2d 720 (1995).

— Stockholders’ Liabilities.

An action against the president and secretary of a corporation based on their statutory liability to answer for its contractual obligations is barred within three years. Dietrich v. Copeland Lumber Co., 28 Idaho 312, 154 P. 626 (1916).

This section is not applicable to action against directors and stockholders of bank for withdrawing assets of the bank. Weil v. Defenbach, 31 Idaho 258, 170 P. 103 (1918). See also Stoltz v. Scott, 23 Idaho 104, 129 P. 340 (1912); Weil v. Defenbach, 36 Idaho 37, 208 P. 1025 (1922); Jenkins v. Standrod, 46 Idaho 614, 269 P. 586 (1928).

Stockholder’s liability for corporate indebtedness, to the amount of his unpaid stock subscription, is not a liability created by statute. Jensen v. Aikman, 32 Idaho 261, 181 P. 525 (1919). See also Grimsmoe v. Kendrick, 42 Idaho 491, 247 P. 746 (1926).

— Taxes, Liability for.

Where owner of delinquency tax certificates within one year after board of county commissioners made its order declaring certificates invalid filed action against county, action was not barred by any statute of limitation. Wilson v. Twin Falls County, 47 Idaho 527, 277 P. 1114 (1929).

Where more than three years had elapsed since taxes became delinquent and no facts tolling three-year statute of limitation prescribed by this section were pleaded in action to enforce lien, the action was barred. Lemhi County ex rel. Gilbreath v. Boise Livestock Loan Co., 47 Idaho 712, 278 P. 214 (1929). Statute of limitations applying to proceeding to collect transfer tax was not tolled by provision that tax should remain lien on real estate until paid. State ex rel. Gallet v. Naylor, 50 Idaho 113, 294 P. 333 (1930).

Where a mandamus to compel reassessment of property within a special or local improvement district was brought some eighteen months after actual notice of the deficiency through the city clerk’s fault, the action was not barred by limitation. Maguire v. Whillock, 63 Idaho 630, 124 P.2d 248 (1942).

Subd. 2. Trespass Upon Real Property.

An action for damages for recurrent flooding of agricultural lands by waters polluted with poisonous waste from ore reduction works is not for trespass but on the case, and not limited by this subdivision. Hill v. Empire State-Idaho Mining & Developing Co., 158 F. 881 (C.C.D. Idaho 1908).

Where a dam causes periodical damage to a sand beach by flooding, the statute does not run from the first as to all recurring floodings. Deffenbaugh v. Washington Water Power Co., 24 Idaho 514, 135 P. 247 (1913).

In action for flooding lands, the statute begins to run when actual damages accrue. Rogers v. Oregon-Washington Ry. & Nav. Co., 28 Idaho 609, 156 P. 98 (1916).

Limitation for action for trespass upon real property has no application to action on the case for consequential damages. Boise Dev. Co. v. Boise City, 30 Idaho 675, 167 P. 1032 (1917).

Action for damages against irrigation company, for water soaking plaintiff’s land, is not action for trespass on real property and this section has no application thereto. Munn v. Twin Falls Canal Co., 43 Idaho 198, 252 P. 865 (1926).

Where placing obstructions in defendant’s dam caused periodic overflowing of plaintiff’s land, statute of limitations began to run from date of each periodic flooding. Lavin v. Panhandle Lumber Co., 51 Idaho 1, 1 P.2d 186 (1931).

The section does not apply to suit for contamination of mining ground, but such suit is governed by§ 5-224. Idaho Gold Dredging Corp. v. Boise Payette Lumber Co., 52 Idaho 766, 22 P.2d 147 (1933).

In action against canal company based on injury to lands caused by eroding of land as the result of seasonal rise and fall of water, each annual intermittent destruction of the land constitutes a separate cause of action as respects the statute of limitations. Johnson v. Twin Falls Canal Co., 66 Idaho 660, 167 P.2d 834, cert. denied, 329 U.S. 782, 67 S. Ct. 202, 91 L. Ed. 671 (1946).

Although the statute of limitations precluded recovery for trespass damages incurred in 1981, the statute did not thereby preclude the court from considering the parties’ conduct in 1981 when it evaluated damage claims arising in 1987. Bumgarner v. Bumgarner, 124 Idaho 629, 862 P.2d 321 (Ct. App. 1993).

Subd. 3. Detention or Injury to Personal Property.

A right of action accrues in favor of the owner of goods as soon as they are wrongfully taken from his possession, or wrongfully converted by one who rightfully came into possession of them. Havird v. Lung, 19 Idaho 790, 115 P. 930 (1911).

Where the possession of property is acquired by a tort, no demand is necessary prior to the institution of suit for its recovery; consequently the statute of limitations is set in motion without such demand. Havird v. Lung, 19 Idaho 790, 115 P. 930 (1911). Action for conversion of notes held barred notwithstanding defendant’s fraudulent concealment, where plaintiff had not exercised ordinary diligence in discovering right of action. Davis v. Consolidated Wagon & Mach. Co., 43 Idaho 730, 254 P. 523 (1927).

Action to recover bank deposit was not governed by this subdivision, but by§ 5-223. Prewett v. First Nat’l Bank, 45 Idaho 451, 262 P. 1057 (1928).

Statute of limitations did not begin to run against attorney’s lien until pledgee sold property on which lien was claimed. Hansbrough v. D.W. Standrod & Co., 49 Idaho 216, 286 P. 923 (1930).

The three-year period applies to all actions involving the tortious taking, detaining or injuring of personal property. Common School Dist. No. 18 v. Twin Falls State Bank & Trust Co., 52 Idaho 200, 12 P.2d 774 (1932).

Trover and conversion, whether the complaint sounds in tort or in contract, is barred in three years under this section. Common School Dist. No. 18 v. Twin Falls State Bank & Trust Co., 52 Idaho 200, 12 P.2d 774 (1932).

Action for damage to mining ground caused by grease and oil deposited in stream by defendant was not governed by this subdivision. Idaho Gold Dredging Corp. v. Boise Payette Lumber Co., 52 Idaho 766, 22 P.2d 147 (1933).

In action where it was shown that defendant, in 1934, acquired a cow which was alleged to belong to plaintiff, defendant was guilty of conversion at that time and an action brought in 1946 for conversion was barred by the three-year statute of limitations. Davidson v. Davidson, 68 Idaho 58, 188 P.2d 329 (1947).

Where water heater was installed without pressure release valve and exploded 18 years later, cause of action for damages caused by explosion occurred at the time of the explosion, notwithstanding that plaintiff knew, at the time of installation, of the failure to install the valve, and action brought within one year from explosion was not barred. Galbraith v. Vangas, Inc., 103 Idaho 912, 655 P.2d 119 (Ct. App. 1982).

Where the wrongful labeling occurred, if at all, at the time of the sale of the chemical by the defendant to the former lessees, and such sale was more than three years prior to the filing of the amended complaint, the improper labeling claim was barred under subdivision 3. of this section. Wing v. Martin, 107 Idaho 267, 688 P.2d 1172 (1984).

Subd. 4. Fraud or Mistake.

The provisions of this subdivision have no application to the action for taking, detaining or injuring goods or chattels. Havird v. Lung, 19 Idaho 790, 115 P. 930 (1911).

One who sustains damage by reason of the mistake and false and fraudulent representation contained in an abstract may commence his action to recover damages against the abstracter within three years after discovering the fraud or mistake. Hillock v. Idaho Title & Trust Co., 22 Idaho 440, 126 P. 612 (1912).

The test, under this subdivision, is not whether the fraud or mistake occurred in a contract or independently of contract, but whether the action seeks relief from or on account of fraud or mistake. Hillock v. Idaho Title & Trust Co., 22 Idaho 440, 126 P. 612 (1912).

Where alleged fraud as set out in counter-claim was discovered and known for more than three years before filing an action on note for damages for loss of profits from breach of warranty, such action was barred. Carlson v. Ozmun, 44 Idaho 500, 258 P. 1078 (1927).

Action to recover bank deposit was not governed by this subdivision but by§ 5-223. Prewett v. First Nat’l Bank, 45 Idaho 451, 262 P. 1057 (1928). Complaint showing that bank’s action against fraudulent directors was brought within three years after discovery of fraud is not demurrable under this section. Jenkins v. Standrod, 46 Idaho 614, 269 P. 586 (1928).

To bring an action within this section on the ground of fraud in concealing the cause of the injury, fraud must be the substantial cause of action, and the action must rest solely on its proof primarily essential to any relief. Trimming v. Howard, 52 Idaho 412, 16 P.2d 661 (1932).

An action for money due certain school districts as a result of misapportionment of school funds is an action for relief on the ground of “mistake” which did not accrue until a discovery thereof, rather than an action on a “liability created by statute other than a penalty or forfeiture” and not barred where timely brought after such discovery. Independent Sch. Dist. No. 1 v. Common Sch. Dist. No. 1, 56 Idaho 426, 55 P.2d 144 (1936).

The statute is tolled by either undiscovered fraud or undiscovered mistake, the test being whether the action seeks relief on account of fraud or mistake. Independent Sch. Dist. No. 1 v. Common Sch. Dist. No. 1, 56 Idaho 426, 55 P.2d 144 (1936).

Action by one school district against another on account of misappropriation of school funds through error in computations was governed by this subdivision, and not by subdivision 1. Independent Sch. Dist. No. 1 v. Common Sch. Dist. No. 1, 56 Idaho 426, 55 P.2d 144 (1936).

In action by surety on bond of bank, given to secure repayments of city’s deposits of public funds, against bank and its receiver, to recover moneys alleged to have been paid by it in excess of its pro rata share of amount due to city where defendants cross-claimed seeking to recover moneys alleged to have been paid by receiver in excess of pro rata share chargeable to bonds pledged by bank to secure repayments of deposit and the last payment was made to the city by the receiver June 4, 1934, and the cross-complaint was filed September 17, 1937, more than three years after respondents discovered the facts constituting the mistake, if there was one, the cause of action stated by the complaint was barred by this subdivision. Commercial Cas. Ins. Co. v. Boise City Nat’l Bank, 61 Idaho 124, 98 P.2d 637 (1940).

An action for damages resulting from an alleged conspiracy to hinder and prevent, by legal proceedings, the collection of a debt owing to the plaintiff was governed by this section, and unless the facts constituting the fraud were not discovered until later, the cause of action was barred three years after accrual. Aker v. Sears, Roebuck & Co., 38 F. Supp. 741 (D. Idaho 1941).

Bondholder’s action to compel reassessment in special or local improvement district was governed by this section. Maguire v. Whillock, 63 Idaho 630, 124 P.2d 248 (1942).

When purchaser sought to recover down payment alleging vendor’s false representation respecting payments due on mortgage, the basis of the action was fraud and the suit was governed by the 3 year statute of limitations for fraud rather than the 4 year statute applicable to contracts not founded on writing. Thomas v. Gordon, 68 Idaho 254, 192 P.2d 856 (1948).

A party who by fraud prevents others from investigating a public record cannot assert the duty to investigate public records as a defense. Gerlach v. Schultz, 72 Idaho 507, 244 P.2d 1095 (1952).

Defrauded party is not charged with constructive notice of records in estate where administrator fails to reveal true state of facts, since administrator as a fiduciary has the duty to disclose. Gerlach v. Schultz, 72 Idaho 507, 244 P.2d 1095 (1952).

Duty of heirs to investigate records of estate was not sufficient to bar suit by heirs against administrator for fraud in transferring assets of estate to himself, even though suit was not filed within three year statutory period following filing of final report where administrator told heirs who lived outside the state that assets were only sufficient to pay debts of deceased. Gerlach v. Schultz, 72 Idaho 507, 244 P.2d 1095 (1952). Complaint showing that bank’s action against fraudulent directors was brought within three years after discovery of fraud is not demurrable under this section. Jenkins v. Standrod, 46 Idaho 614, 269 P. 586 (1928).

To bring an action within this section on the ground of fraud in concealing the cause of the injury, fraud must be the substantial cause of action, and the action must rest solely on its proof primarily essential to any relief. Trimming v. Howard, 52 Idaho 412, 16 P.2d 661 (1932).

An action for money due certain school districts as a result of misapportionment of school funds is an action for relief on the ground of “mistake” which did not accrue until a discovery thereof, rather than an action on a “liability created by statute other than a penalty or forfeiture” and not barred where timely brought after such discovery. Independent Sch. Dist. No. 1 v. Common Sch. Dist. No. 1, 56 Idaho 426, 55 P.2d 144 (1936).

The statute is tolled by either undiscovered fraud or undiscovered mistake, the test being whether the action seeks relief on account of fraud or mistake. Independent Sch. Dist. No. 1 v. Common Sch. Dist. No. 1, 56 Idaho 426, 55 P.2d 144 (1936).

Action by one school district against another on account of misappropriation of school funds through error in computations was governed by this subdivision, and not by subdivision 1. Independent Sch. Dist. No. 1 v. Common Sch. Dist. No. 1, 56 Idaho 426, 55 P.2d 144 (1936).

In action by surety on bond of bank, given to secure repayments of city’s deposits of public funds, against bank and its receiver, to recover moneys alleged to have been paid by it in excess of its pro rata share of amount due to city where defendants cross-claimed seeking to recover moneys alleged to have been paid by receiver in excess of pro rata share chargeable to bonds pledged by bank to secure repayments of deposit and the last payment was made to the city by the receiver June 4, 1934, and the cross-complaint was filed September 17, 1937, more than three years after respondents discovered the facts constituting the mistake, if there was one, the cause of action stated by the complaint was barred by this subdivision. Commercial Cas. Ins. Co. v. Boise City Nat’l Bank, 61 Idaho 124, 98 P.2d 637 (1940).

An action for damages resulting from an alleged conspiracy to hinder and prevent, by legal proceedings, the collection of a debt owing to the plaintiff was governed by this section, and unless the facts constituting the fraud were not discovered until later, the cause of action was barred three years after accrual. Aker v. Sears, Roebuck & Co., 38 F. Supp. 741 (D. Idaho 1941).

Bondholder’s action to compel reassessment in special or local improvement district was governed by this section. Maguire v. Whillock, 63 Idaho 630, 124 P.2d 248 (1942).

When purchaser sought to recover down payment alleging vendor’s false representation respecting payments due on mortgage, the basis of the action was fraud and the suit was governed by the 3 year statute of limitations for fraud rather than the 4 year statute applicable to contracts not founded on writing. Thomas v. Gordon, 68 Idaho 254, 192 P.2d 856 (1948).

A party who by fraud prevents others from investigating a public record cannot assert the duty to investigate public records as a defense. Gerlach v. Schultz, 72 Idaho 507, 244 P.2d 1095 (1952).

Defrauded party is not charged with constructive notice of records in estate where administrator fails to reveal true state of facts, since administrator as a fiduciary has the duty to disclose. Gerlach v. Schultz, 72 Idaho 507, 244 P.2d 1095 (1952).

Duty of heirs to investigate records of estate was not sufficient to bar suit by heirs against administrator for fraud in transferring assets of estate to himself, even though suit was not filed within three year statutory period following filing of final report where administrator told heirs who lived outside the state that assets were only sufficient to pay debts of deceased. Gerlach v. Schultz, 72 Idaho 507, 244 P.2d 1095 (1952). The three year statute of limitations for fraud of subsection 4. of this section applied to action brought by sublessees of desert entry lands against lessors and others for damages and for alleged misrepresentation and was not tolled until the original complaint was filed so as to bar the action. Stewart v. Hood Corp., 95 Idaho 198, 506 P.2d 95 (1973).

The three year period of limitations prescribed in this section is applicable to an action brought by or for the benefit of the state to recover unemployment benefits fraudulently obtained. Norton v. Department of Emp., 94 Idaho 924, 500 P.2d 825 (1972).

Where fraud could have been discovered through the exercise of reasonable diligence at the time it was alleged to have been committed, an action brought ten (10) years later was barred by this section. Nancy Lee Mines, Inc. v. Harrison, 95 Idaho 546, 511 P.2d 828 (1973).

Although the four-year statute of limitation for an action on an oral contract under this section, and the three-year period of limitation for an action for relief on the ground of fraud under this section would not apply to a purely defensive counterclaim, they would apply to a counterclaim insofar as it seeks a sum in excess of the amount pleaded in the complaint. Full Circle, Inc. v. Schelling, 108 Idaho 634, 701 P.2d 254 (Ct. App. 1985).

— Action Against Professional.

Where the plaintiffs were attempting to recover on a contract to which it was not shown they were a party, and where the plaintiffs had not shown any contractual duty owed them by defendant, the trial court was correct in applying the three-year fraud statute of limitations. Barnett v. Aetna Life Ins. Co., 99 Idaho 246, 580 P.2d 849 (1978).

An action for fraud or a deceit against a professional is covered by the statute of limitations for fraud, subdivision 4. of this section, rather than the statute of limitations for professional malpractice, subdivision 4. of§ 5-219. Umphrey v. Sprinkel, 106 Idaho 700, 682 P.2d 1247 (1983).

The plaintiff’s allegations based on fraud were not covered by the professional malpractice statute, but rather by the fraud statute of limitations contained in subsection (4) of this section. McCoy v. Lyons, 120 Idaho 765, 820 P.2d 360 (1991).

— Actual Knowledge.

“Discovery”, as used in subdivision 4. of this section, means the point in time when the plaintiff had actual or constructive knowledge of the facts constituting the fraud and that the application of subdivision 4. of this section does not depend on when the plaintiff should have been aware that something was wrong. Jones v. Kootenai County Title Ins. Co., 125 Idaho 607, 873 P.2d 861 (1994).

— — Inferred.

While “actual knowledge of the fraud” can be inferred if the aggrieved party could have discovered the fraud by reasonable diligence, the courts of this state should hesitate to infer knowledge of fraud. McCoy v. Lyons, 120 Idaho 765, 820 P.2d 360 (1991).

— Commencement of Running of Statute.

This statute begins to run against a water user three years after he discovers that he has been defrauded. Oregon Mtg. Co. v. Renner, 17 F. Supp. 727 (D. Idaho 1937), aff’d, 96 F.2d 429 (9th Cir. 1938). Time begins to run against a trust as soon as it is openly disavowed by the trustee and the disavowal is clearly made known to the cestui que trust. Olympia Mining & Milling Co. v. Kerns, 24 Idaho 481, 135 P. 255 (1913), appeal dismissed, 236 U.S. 211, 35 S. Ct. 415, 59 L. Ed. 542 (1915).

Knowledge of such facts as would put a reasonably prudent person upon inquiry is equivalent to knowledge of fraud and will start commencement of statute. Williams v. Shrope, 30 Idaho 746, 168 P. 162 (1917); Parish v. Page, 50 Idaho 87, 293 P. 979 (1930).

Statutory period commences to run when the fraud is discovered. Steinour v. Oakley State Bank, 49 Idaho 293, 287 P. 949 (1930).

Where highway district ratified purchase of bonds with sinking funds but failed to publish a required statement, the adoption of the motion to ratify the purchase did not set this statute running against taxpayer’s suit to recover funds so invested. Filer Hwy. Dist. ex rel. Alworth v. Shearer, 54 Idaho 201, 30 P.2d 199 (1934).

In action to enforce a trust having its inception in fraud, the cause of action is not deemed to have accrued until the discovery of the fraud. Brasch v. Brasch, 55 Idaho 777, 47 P.2d 676 (1935).

Cause of action founded on mistake in apportionment of school funds does not accrue until discovery of facts constituting the mistake. Independent Sch. Dist. No. 1 v. Common Sch. Dist. No. 1, 56 Idaho 426, 55 P.2d 144 (1936).

Breach of trust by trustee gives rise to cause of action accruing on discovery of the repudiation of the trust. Cruzen v. Boise City, 58 Idaho 406, 74 P.2d 1037 (1937).

Statute does not begin to run in favor of trustee until repudiation of trust and the trust must be repudiated and the period is four years from date of notice to trustor. Cruzen v. Boise City, 58 Idaho 406, 74 P.2d 1037 (1937).

Complaint brought by purchasers against vendors for rescission or damages based on the fact that one cabin and certain sewer pipes and part of a service station encroached upon the right-of-way of the city was not barred by the provisions of§ 5-216 and this section where such knowledge of encroachment was had on December 29, 1952, and action was filed January 18, 1954. Galvin v. Appleby, 78 Idaho 457, 305 P.2d 309 (1956).

The limitation under subdivision 4 of this section did not run against an action by the payee of a note against a loan broker for making a usurious loan and thereby subjecting the payee to the statutory penalties for usury, where the payee did not know of the usurious character of the note until the makers defaulted thereon. Bjornstad v. Perry, 92 Idaho 402, 443 P.2d 999 (1968).

Since the alleged promise of seller that certain property adjoining that of purchasers would be reserved for common use was not a lien or encumbrance, order of bankruptcy court authorizing sale of part of such property “free and clear of all liens and encumbrances” did not put the purchasers on notice of fraud and did not start the statute of limitations running on purchasers’ action to enforce the promise. Middlekauff v. Lake Cascade, Inc., 103 Idaho 832, 654 P.2d 1385 (1982).

An action seeking relief from mistake will be time-barred under subdivision 4 of this section unless it is filed within three years after the mistake could have been discovered in the exercise of due diligence. Aitken v. Gill, 108 Idaho 900, 702 P.2d 1360 (Ct. App. 1985).

A cause of action accrues at the time the fraud would have been discovered in the exercise of reasonable diligence. Ordinarily, what constitutes reasonable diligence to discover fraud so as to affect the time when the statute of limitations begins to run is a question of fact for the jury; however, where only one conclusion can be reasonably drawn from the evidence, the question of the exercise of reasonable diligence to discover fraud may be decided by the court as a matter of law. Full Circle, Inc. v. Schelling, 108 Idaho 634, 701 P.2d 254 (Ct. App. 1985). Time begins to run against a trust as soon as it is openly disavowed by the trustee and the disavowal is clearly made known to the cestui que trust. Olympia Mining & Milling Co. v. Kerns, 24 Idaho 481, 135 P. 255 (1913), appeal dismissed, 236 U.S. 211, 35 S. Ct. 415, 59 L. Ed. 542 (1915).

Knowledge of such facts as would put a reasonably prudent person upon inquiry is equivalent to knowledge of fraud and will start commencement of statute. Williams v. Shrope, 30 Idaho 746, 168 P. 162 (1917); Parish v. Page, 50 Idaho 87, 293 P. 979 (1930).

Statutory period commences to run when the fraud is discovered. Steinour v. Oakley State Bank, 49 Idaho 293, 287 P. 949 (1930).

Where highway district ratified purchase of bonds with sinking funds but failed to publish a required statement, the adoption of the motion to ratify the purchase did not set this statute running against taxpayer’s suit to recover funds so invested. Filer Hwy. Dist. ex rel. Alworth v. Shearer, 54 Idaho 201, 30 P.2d 199 (1934).

In action to enforce a trust having its inception in fraud, the cause of action is not deemed to have accrued until the discovery of the fraud. Brasch v. Brasch, 55 Idaho 777, 47 P.2d 676 (1935).

Cause of action founded on mistake in apportionment of school funds does not accrue until discovery of facts constituting the mistake. Independent Sch. Dist. No. 1 v. Common Sch. Dist. No. 1, 56 Idaho 426, 55 P.2d 144 (1936).

Breach of trust by trustee gives rise to cause of action accruing on discovery of the repudiation of the trust. Cruzen v. Boise City, 58 Idaho 406, 74 P.2d 1037 (1937).

Statute does not begin to run in favor of trustee until repudiation of trust and the trust must be repudiated and the period is four years from date of notice to trustor. Cruzen v. Boise City, 58 Idaho 406, 74 P.2d 1037 (1937).

Complaint brought by purchasers against vendors for rescission or damages based on the fact that one cabin and certain sewer pipes and part of a service station encroached upon the right-of-way of the city was not barred by the provisions of§ 5-216 and this section where such knowledge of encroachment was had on December 29, 1952, and action was filed January 18, 1954. Galvin v. Appleby, 78 Idaho 457, 305 P.2d 309 (1956).

The limitation under subdivision 4 of this section did not run against an action by the payee of a note against a loan broker for making a usurious loan and thereby subjecting the payee to the statutory penalties for usury, where the payee did not know of the usurious character of the note until the makers defaulted thereon. Bjornstad v. Perry, 92 Idaho 402, 443 P.2d 999 (1968).

Since the alleged promise of seller that certain property adjoining that of purchasers would be reserved for common use was not a lien or encumbrance, order of bankruptcy court authorizing sale of part of such property “free and clear of all liens and encumbrances” did not put the purchasers on notice of fraud and did not start the statute of limitations running on purchasers’ action to enforce the promise. Middlekauff v. Lake Cascade, Inc., 103 Idaho 832, 654 P.2d 1385 (1982).

An action seeking relief from mistake will be time-barred under subdivision 4 of this section unless it is filed within three years after the mistake could have been discovered in the exercise of due diligence. Aitken v. Gill, 108 Idaho 900, 702 P.2d 1360 (Ct. App. 1985).

A cause of action accrues at the time the fraud would have been discovered in the exercise of reasonable diligence. Ordinarily, what constitutes reasonable diligence to discover fraud so as to affect the time when the statute of limitations begins to run is a question of fact for the jury; however, where only one conclusion can be reasonably drawn from the evidence, the question of the exercise of reasonable diligence to discover fraud may be decided by the court as a matter of law. Full Circle, Inc. v. Schelling, 108 Idaho 634, 701 P.2d 254 (Ct. App. 1985). A cause of action against a notary public for falsely acknowledging forged signatures on a promissory note and mortgage did not accrue until sellers of land first learned that they had been damaged by forgery, not when the signatures had been forged and notarized. Osborn v. Ahrens, 116 Idaho 14, 773 P.2d 282 (1989).

The district court erred in calculating the limitation period as commencing from the date of the malpractice or fraud rather than allowing a jury to determine when the plaintiff-heirs discovered the fraud or the facts constituting the fraud as required in subsection 4. of this section; accordingly, the plaintiff-heirs’ causes of action sounding in fraud were remanded to the district court for trial. McCoy v. Lyons, 120 Idaho 765, 820 P.2d 360 (1991).

An inmate’s claims against a court reporter for fraud and negligence and tortious interference with rights of citizenship were time barred by this section and§§ 5-219 and 5-224 where the claims were filed more than four years after time inmate’s attorney, through due diligence, could have discovered alleged omissions in trial transcript. Mason v. Tucker & Assocs., 125 Idaho 429, 871 P.2d 846 (Ct. App. 1994).

— Extent of Concealment.

In cases where fraud, concealment and ignorance of fact are relied upon to suspend running of statute, there must have been such concealment as would prevent person exercising due diligence from discovering facts. Stout v. Cunningham, 33 Idaho 464, 196 P. 208 (1921); Davis v. Consolidated Wagon & Mach. Co., 43 Idaho 730, 254 P. 523 (1927).

The fact of discovery becomes controlling only when the action is based on the ground of fraud or mistake and does not have any application to a new tortious taking which does not involve fraud in its commonly accepted significance. Common School Dist. No. 18 v. Twin Falls State Bank & Trust Co., 52 Idaho 200, 12 P.2d 774 (1932).

— Ignorance or Silence.

Where there is no fraud shown, neither the ignorance of the person of the right to bring action, nor the mere silence of the person liable to the action, will prevent the running of the statute of limitations. Coe v. Sloan, 16 Idaho 49, 100 P. 354 (1909).

Execution of receipts in full by heirs in 1936 at time of final report, and receipt of final payment in 1939, did not bar action by heirs in December of 1942 to recover amount due under and to impress a trust on estate of executor, either on the ground of laches, or by limitations, where heirs were nonresidents, had not read the will, and depended on their uncle as executor to faithfully account for amount due under the will. Burns v. Skogstad, 69 Idaho 227, 206 P.2d 765 (1949).

Where discovery of a cause of action commences the statute of limitations, the date of discovery is a fact question for the jury unless there is no evidence creating a question of fact. McCoy v. Lyons, 120 Idaho 765, 820 P.2d 360 (1991).

— Interruption of Statute.

Statute is not tolled during pendency of litigation between the parties seeking to have the same matter adjudicated on the basis of an action to quiet title. Steinour v. Oakley State Bank, 49 Idaho 293, 287 P. 949 (1930). The defense that wife’s right to attack a quitclaim deed of July 13, 1949, on ground of duress, fraud or undue influence was barred by the three-year statute of limitations was not applicable since it was tolled by the death of her husband within the three year period. Lundy v. Lundy, 79 Idaho 185, 312 P.2d 1028 (1957).

— Pleading and Practice.

Where a cause of action is stated and the answer pleads the bar of the statute of limitations, it is error to enter judgment in favor of defendant on the pleadings, even though it should appear to be barred as shown in the face of the complaint. Chemung Mining Co. v. Hanley, 9 Idaho 786, 77 P. 226 (1904).

General allegation of ignorance of fraud at one time and knowledge at another is of no effect and if plaintiff made any particular discovery it should be stated when it was made, what it was, how it was made, and why it was not made sooner. Stout v. Cunningham, 33 Idaho 464, 196 P. 208 (1921); Ryan v. Old Veteran Mining Co., 37 Idaho 625, 218 P. 381 (1923).

Where proceeds of the sale of property were deposited in court pursuant to a stipulation entered into by the parties under the terms of which the proceeds where to be turned over to the one ultimately entitled thereto, the claim of the assignee of one of the defendants to the portion of the proceeds attached by the plaintiff as property of such defendant, although presented by a proceeding in intervention, more than four years after the attachment but prior to trial of the case, was not barred by limitation since it was filed before the trial and was therefore timely. Anderson v. Ferguson, 56 Idaho 554, 57 P.2d 325 (1936).

Cross-complaint was filed more than three years after discovery, by cross-complainants, of the facts constituting the alleged mistake on which the cross-complaint was based, and the cause of action therein stated is barred. Commercial Cas. Ins. Co. v. Boise City Nat’l Bank, 61 Idaho 124, 98 P.2d 637 (1940).

In an action for damages resulting from conspiracy founded on fraud, general allegations that the facts constituting the fraud were not discovered until the time within the period of limitations preceding commencement of the action, without alleging such facts of concealment as would prevent a person exercising due diligence from discovering the fraud, how the fraud was discovered, and why it was not discovered sooner, were insufficient to suspend the running of the statute of limitations. Aker v. Sears, Roebuck & Co., 38 F. Supp. 741 (D. Idaho 1941).

Where plaintiff alleged wrongful sale of his cattle and appropriation of proceeds by defendant, the action sounded in tort and not in contract, and defendant’s defense of statute of limitations was not rendered inapplicable by plaintiff’s contention that the tort action had been waived and the action based on implied contract. Davidson v. Davidson, 68 Idaho 58, 188 P.2d 329 (1947).

Where intervenor brought action against warehouseman for conversion of grain more than three years after making demand on warehouseman for the grain, three year statute of limitations of this section was not tolled by intervenor’s petitioning the commissioner of agriculture under§ 69-209 as commissioner did not commence a suit in intervenor’s behalf and intervenor’s petition to commissioner did not constitute commencing an action. United States v. Fireman’s Fund Ins. Co., 191 F. Supp. 317 (D. Idaho 1961).

— Time Limitations.

The fact that one of the grounds for dismissal of appellant’s fraud claim was based upon the statute of limitations of this section and might have been in error was of no consequence and could be disregarded if the judgment could be sustained upon one of the other alternative grounds. MacLeod v. Reed, 126 Idaho 669, 889 P.2d 103 (Ct. App. 1995). — Time Limitations.

As to a fraud claim asserted in a case alleging sexual molestation of children, two daughters failed to plead with the particularity required in that they did not plead any false representations by the father. In any event, the claim would have been time barred. Glaze v. Deffenbaugh, 144 Idaho 829, 172 P.3d 1104 (2007).

Am. Jur. 2d.

51 Am. Jur. 2d, Limitation of Actions, §§ 127, 131 to 132.

C.J.S.

ALR.

Statute of limitations in illegitimacy or bastardy proceedings. 59 A.L.R.3d 685.

Accrual of Claims for Continuing Trespass or Continuing Nuisance for Purposes of Statutory Limitations. 14 A.L.R.7th 8.

Abuse of Process.

A cause of action for abuse of process accrues from the termination of the acts which constitute the abuse complained of. Gowin v. Altmiller, 455 F. Supp. 743 (D. Idaho 1978), aff’d, 647 F.2d 170 (9th Cir. 1981). But see Idaho State Bar v. Tway, 128 Idaho 794, 919 P.2d 323 (1996).

The four-year statute of limitations contained in§ 5-224, instead of the two-year statute of limitations under this section, applies to abuse of process claims. Gowin v. Altmiller, 663 F.2d 820 (9th Cir. 1981). But see Idaho State Bar v. Tway, 128 Idaho 794, 919 P.2d 323 (1996).

Accrual of Action.

The cause of action for an accountant’s malpractice for each fiscal year first accrued at the time of the actual occurrence of the illegal acts of malpractice, rather than the date when the auditors first discovered the defalcations. Owyhee County v. Rife, 100 Idaho 91, 593 P.2d 995 (1979).

Under this section, a cause of action accrues at the time of the wrongdoing, rather than at the time of discovery of the wrongful act. Wing v. Martin, 107 Idaho 267, 688 P.2d 1172 (1984).

Since, under the cause of action for wrongful birth, there is no defective child until and unless the birth occurs, the statute of limitations cannot begin to run until the date of birth. Blake v. Cruz, 108 Idaho 253, 698 P.2d 315 (1984).

There is no broad discovery exception under this section; instead, the limitation period begins to run from the date damage has occurred. Zumwalt v. Stephan, Balleisen & Slavin, 113 Idaho 822, 748 P.2d 406 (Ct. App. 1987).

A cause of action against a notary public for falsely acknowledging forged signatures on a promissory note and mortgage did not accrue until sellers of land first learned that they had been damaged by forgery, not when the signatures had been forged and notarized. Osborn v. Ahrens, 116 Idaho 14, 773 P.2d 282 (1989).

Despite the language in subdivision 4 of this section that a cause of action shall be deemed to have accrued as of the time of the occurrence, act or omission complained of, a cause of action does not accrue at the time of the act complained of unless some damage has occurred. Hawley v. Green, 117 Idaho 498, 788 P.2d 1321 (1990).

Debtor’s suit for libel, against bank issuing credit card, based on the erroneous reporting of credit information was barred by the statute of limitations because the cause of action accrued at the time the bank first furnished the information to the credit reporting agency, not at the time of the discovery of the wrongful act four years later. Hoglan v. First Sec. Bank, 120 Idaho 682, 819 P.2d 100 (1991).

Where a patient eventually lost her sight after cataract surgery in October 1999, the only issue of negligence presented concerned the doctor’s post-operative care. The patient’s claim could not have accrued before the first incident of alleged malpractice, which was on November 12, 1999; the patient filed her request for a prelitigation screening panel on November 8, 2001, less than two years after the alleged act of malpractice, so her claim was not barred by the statute of limitations. Conway v. Sonntag, 141 Idaho 144, 106 P.3d 470 (2005).

Trial court erred in dismissing plaintiff’s federal civil rights action against the state for false imprisonment. It failed to afford plaintiff credit for the time that plaintiff served before a sentence was imposed, and the two-year statute of limitations did not begin to run until the false imprisonment ended; hence, plaintiff’s claim was timely. McCabe v. Craven, 145 Idaho 954, 188 P.3d 896 (2008).

Chapter 7 trustee’s adversary proceeding alleging that a notary public and the notary’s employer were liable under§ 51-118 for damages the notary caused when she notarized the forged signature of a debtor on a deed of trust was not time-barred, even though the trustee filed his adversary proceeding on March 25, 2009, more than three years after the notary notarized the debtor’s signature. Subsection (4) of this section gave the debtor two years from the date he discovered the notary’s misconduct to file a lawsuit. The debtor discovered the notary’s conduct in May 2006, and declared bankruptcy on March 28, 2008. 11 U.S.C.S. § 108 extended the period the trustee had to file his adversary proceeding until March 28, 2010. Gugino v. Alliance Title & Escrow Corp. (In re Ganier), 2010 Bankr. LEXIS 1444 (Bankr. D. Idaho May 3, 2010). A cause of action for abuse of process accrues from the termination of the acts which constitute the abuse complained of. Gowin v. Altmiller, 455 F. Supp. 743 (D. Idaho 1978), aff’d, 647 F.2d 170 (9th Cir. 1981). But see Idaho State Bar v. Tway, 128 Idaho 794, 919 P.2d 323 (1996).

The four-year statute of limitations contained in§ 5-224, instead of the two-year statute of limitations under this section, applies to abuse of process claims. Gowin v. Altmiller, 663 F.2d 820 (9th Cir. 1981). But see Idaho State Bar v. Tway, 128 Idaho 794, 919 P.2d 323 (1996).

Accrual of Action.

The cause of action for an accountant’s malpractice for each fiscal year first accrued at the time of the actual occurrence of the illegal acts of malpractice, rather than the date when the auditors first discovered the defalcations. Owyhee County v. Rife, 100 Idaho 91, 593 P.2d 995 (1979).

Under this section, a cause of action accrues at the time of the wrongdoing, rather than at the time of discovery of the wrongful act. Wing v. Martin, 107 Idaho 267, 688 P.2d 1172 (1984).

Since, under the cause of action for wrongful birth, there is no defective child until and unless the birth occurs, the statute of limitations cannot begin to run until the date of birth. Blake v. Cruz, 108 Idaho 253, 698 P.2d 315 (1984).

There is no broad discovery exception under this section; instead, the limitation period begins to run from the date damage has occurred. Zumwalt v. Stephan, Balleisen & Slavin, 113 Idaho 822, 748 P.2d 406 (Ct. App. 1987).

A cause of action against a notary public for falsely acknowledging forged signatures on a promissory note and mortgage did not accrue until sellers of land first learned that they had been damaged by forgery, not when the signatures had been forged and notarized. Osborn v. Ahrens, 116 Idaho 14, 773 P.2d 282 (1989).

Despite the language in subdivision 4 of this section that a cause of action shall be deemed to have accrued as of the time of the occurrence, act or omission complained of, a cause of action does not accrue at the time of the act complained of unless some damage has occurred. Hawley v. Green, 117 Idaho 498, 788 P.2d 1321 (1990).

Debtor’s suit for libel, against bank issuing credit card, based on the erroneous reporting of credit information was barred by the statute of limitations because the cause of action accrued at the time the bank first furnished the information to the credit reporting agency, not at the time of the discovery of the wrongful act four years later. Hoglan v. First Sec. Bank, 120 Idaho 682, 819 P.2d 100 (1991).

Where a patient eventually lost her sight after cataract surgery in October 1999, the only issue of negligence presented concerned the doctor’s post-operative care. The patient’s claim could not have accrued before the first incident of alleged malpractice, which was on November 12, 1999; the patient filed her request for a prelitigation screening panel on November 8, 2001, less than two years after the alleged act of malpractice, so her claim was not barred by the statute of limitations. Conway v. Sonntag, 141 Idaho 144, 106 P.3d 470 (2005).

Trial court erred in dismissing plaintiff’s federal civil rights action against the state for false imprisonment. It failed to afford plaintiff credit for the time that plaintiff served before a sentence was imposed, and the two-year statute of limitations did not begin to run until the false imprisonment ended; hence, plaintiff’s claim was timely. McCabe v. Craven, 145 Idaho 954, 188 P.3d 896 (2008).

Chapter 7 trustee’s adversary proceeding alleging that a notary public and the notary’s employer were liable under§ 51-118 for damages the notary caused when she notarized the forged signature of a debtor on a deed of trust was not time-barred, even though the trustee filed his adversary proceeding on March 25, 2009, more than three years after the notary notarized the debtor’s signature. Subsection (4) of this section gave the debtor two years from the date he discovered the notary’s misconduct to file a lawsuit. The debtor discovered the notary’s conduct in May 2006, and declared bankruptcy on March 28, 2008. 11 U.S.C.S. § 108 extended the period the trustee had to file his adversary proceeding until March 28, 2010. Gugino v. Alliance Title & Escrow Corp. (In re Ganier), 2010 Bankr. LEXIS 1444 (Bankr. D. Idaho May 3, 2010). Products liability cause of action against a manufacturer of a hip device was not property of the estate where, even though it was implanted pre-petition and debtor began experiencing pain pre-petition, his injury had not accrued under Idaho law, as it was not objectively ascertainable. Nor was the cause of action sufficiently rooted in the pre-bankruptcy past, because on the day of the bankruptcy filing, it remained only a nebulous possibility that the device would cause him injury. In re Bolton, 584 B.R. 44 (Bankr. D. Idaho 2018).

A legal malpractice claim, relating to signing a settlement for less than the client believed that she was entitled to, was time barred, because her cause of action accrued when she signed the release of claims more than two years prior to her filing the malpractice case. Walsh v. Swapp Law, PLLC, — Idaho —, 462 P.3d 607 (2020).

Action Against Architect.

Where the owners of a poorly constructed clinic sued its architect eight years after the completion of the building,§ 5-241 and this section barred all claims against the architect except those which rested upon fraudulent misrepresentations made by the architect. Twin Falls Clinic & Hosp. Bldg. Corp. v. Hamill, 103 Idaho 19, 644 P.2d 341 (1982).

Where the architect of a construction project had made representations regarding the separation and cracking of mortar intended to be relied upon by him and which were relied upon by the owners of the construction project, an issue of material fact remained as to whether the architect was estopped from asserting the statute of limitations, and hence summary judgment was precluded. Twin Falls Clinic & Hosp. Bldg. Corp. v. Hamill, 103 Idaho 19, 644 P.2d 341 (1982).

Statement in Twin Falls Clinic v. Hamill , 103 Idaho 19, 644 P.2d 341 (1982) that§ 5-241 engrafted a limited discovery exception in the area of tort liability arising out of the design or construction of improvements to real property, and that such exemption would only be applicable to latent defects since patent defects by definition would be those which should have been discovered, was not intended to be a broad statement expressing the general application of§ 5-241 but rather, was an expression of how§ 5-241 functions in the narrow setting of an action alleging defective design; where plaintiff had not sought to prove that defendant architect’s design was defective, but alleged that he was negligent in his inspection of the apartment, such statement of law did not apply. Stephens v. Stearns, 106 Idaho 249, 678 P.2d 41 (1984).

Cause of action against architect alleging negligent inspection of apartment complex fell within§ 5-241, rather than this section, because plaintiff’s tort cause of action was one which arose out of the construction of an improvement to real property. Stephens v. Stearns, 106 Idaho 249, 678 P.2d 41 (1984).

Action Against County.

Action Against Court Reporter.

The statute of limitations runs against the county in a civil action brought by the county against an ex-clerk of the district court, who was ex-officio auditor and recorder of such county, for alleged illegal fees and compensation collected by him from the county during the term of his office. Bannock County v. Bell, 8 Idaho 1, 65 P. 710 (1901). Action Against Court Reporter.

An inmate’s claims against a court reporter for fraud and negligence and tortious interference with rights of citizenship were time barred by this section and§§ 5-218 and 5-224 where the claims were filed more than four years after time inmate’s attorney, through due diligence, could have discovered alleged omissions in trial transcript. Mason v. Tucker & Assocs., 125 Idaho 429, 871 P.2d 846 (Ct. App. 1994).

Action Against Dentist.

Where the defendant dentist was sued for his alleged negligent actions in cutting the nerves in the plaintiff’s mouth while extracting a wisdom tooth, the trial court properly held that the statute of limitations began to run on the plaintiff’s cause of action on the date of the extraction; furthermore, since the plaintiff’s allegation that defendant failed to warn plaintiff of the risks inherent in the procedure would of necessity have had to have occurred prior to the date of extraction, the statute of limitations would also have run on that claim. Masi v. Seale, 106 Idaho 561, 682 P.2d 102 (1984).

Action Against Sheriff.

While the statute does not apply to bankruptcy proceedings, if judgment creditor could no longer recover against sheriff for damages to attached property, bankrupt’s claim against judgment creditor therefor should be barred by laches. Pindel v. Holgate, 221 F. 342 (9th Cir. 1915).

Cause of action against sheriff for not paying over proceeds of attached property does not accrue until there has been final judgment in attachment suit establishing right to funds. Sullivan v. Mabey, 45 Idaho 595, 264 P. 233 (1928).

Action against sheriff and his sureties accrues on date of demand on sheriff for return of property wrongfully attached. Oaks v. American Sur. Co., 58 Idaho 482, 76 P.2d 932 (1938).

Either subdivision 1 or subdivision 5 of this section could have been applied as the most analogous state statute of limitations in a civil rights action under 42 U.S.C. § 1983 against a sheriff and his deputy. Gowin v. Altmiller, 455 F. Supp. 743 (D. Idaho 1978), aff’d, 647 F.2d 170 (9th Cir. 1981). But see Idaho State Bar v. Tway, 128 Idaho 794, 919 P.2d 323 (1996).

Applicability.

Where a former client’s disability checks were alleged to have been cashed and spent by the law firm which received the checks, the cause of action was not subject to the statute of limitations for legal malpractice under subsection (4) of this section or the statute of limitations for fraud under§ 5-218(4). It was an action for conversion under§ 28-3-118(7); however, under any of these sections, the limitations period ran before plaintiff filed suit. McCormack v. Caldwell, 152 Idaho 15, 266 P.3d 490 (Ct. App. 2011).

Personal injury statute of limitations should not apply to constructive fraud claims as a class because constructive fraud generally results in an economic harm rather than personal injury; the personal injury statute of limitations does not contemplate the type of harm that results from constructive fraud, and it only applies to personal injury claims and requires filing within two years. Doe v. BSA, 159 Idaho 103, 356 P.3d 1049 (2015). When a guest brought a personal injury claim against a hotel, the guest’s amended complaint naming the hotel’s correct owner, who had not filed an assumed business name certificate, did not relate back to the guest’s timely original complaint, because the correct owner had no notice of the claim within the statute of limitations. Gallagher v. Best Western Cottontree Inn, 161 Idaho 542, 388 P.3d 57 (2017).

Asbestos-Related Injury.

The action for personal injuries to and wrongful death of decedents who died of asbestosis resulting from exposure to asbestos was remanded to the district court for determination of the statute of limitations issue in light of Davis v. Moran , 112 Idaho 703, 735 P.2d 1014 (1987), where the supreme court interpreted subdivision 4 of this section in such a manner that the limitations period does not commence on the date of the tortfeasor’s conduct under certain circumstances. Adams v. Armstrong World Indus., Inc., 847 F.2d 589 (9th Cir. 1988).

Plaintiff’s complaint was barred by the two-year statute of limitation on personal injuries found in this section where there was objective medical proof supporting the existence of plaintiff’s asbestos-related injury in a July 1992 report, and plaintiff did not file the claim until October 1994. Brennan v. Owens-Corning Fiberglas Corp., 134 Idaho 800, 10 P.3d 749 (2000).

Attorney’s Fees.

Action on policy of life insurance in which temporary contract of insurance was found to exist was governed by five year limitation of§ 5-216 and, therefore, attorney’s fees being part of the relief granted in the case the limitation of§ 5-216 also applied to such fees and not the two year limitation of subdivision 2 of this section. Dunford v. United of Omaha, 95 Idaho 282, 506 P.2d 1355 (1973).

In a malpractice action by a real estate loan broker against an attorney who helped close the loan in question, which was based on the attorney’s failure to advise the broker as to the attorney’s knowledge of the true value of the property, statute of limitations began to run on the date the broker suffered damages by incurring attorney fees in defending against an action brought by lenders. Griggs v. Nash, 116 Idaho 228, 775 P.2d 120 (1989).

Constitutionality.

Subdivision 4 of this section is not constitutionally infirm and does not violate either the due process or equal protection clauses of the United States Constitution. Holmes v. Iwasa, 104 Idaho 179, 657 P.2d 476 (1983).

Subdivision 4 of this section does not violateIdaho Const., Art. I, § 18, despite the fact that it eliminates certain classes of plaintiffs. Adams v. Armstrong World Indus., Inc., 664 F. Supp. 463 (D. Idaho 1987), rev’d on other grounds, 847 F.2d 589 (9th Cir. 1988).

Subsection 4 of this section does not violateIdaho Const., Art. I, § 18 as that section merely admonishes the courts to dispense justice and to secure citizens the rights and remedies afforded by the legislature or by the common law; it does not create any substantive rights. Hawley v. Green, 117 Idaho 498, 788 P.2d 1321 (1990).

Continuous Tort.

Where a real estate agent alleged outrageous conduct by real estate developers in 2003, which ceased and did not resume until 2005, the two-year statute of limitations for the 2003 conduct expired in 2005, and the resumption of outrageous conduct in 2005 did not revive the real estate agent’s 2003 claim under a continuous tort theory. Johnson v. McPhee, 147 Idaho 455, 210 P.3d 563 (Ct. App. 2009). When a guest brought a personal injury claim against a hotel, the guest’s amended complaint naming the hotel’s correct owner, who had not filed an assumed business name certificate, did not relate back to the guest’s timely original complaint, because the correct owner had no notice of the claim within the statute of limitations. Gallagher v. Best Western Cottontree Inn, 161 Idaho 542, 388 P.3d 57 (2017).

Asbestos-Related Injury.

The action for personal injuries to and wrongful death of decedents who died of asbestosis resulting from exposure to asbestos was remanded to the district court for determination of the statute of limitations issue in light of Davis v. Moran , 112 Idaho 703, 735 P.2d 1014 (1987), where the supreme court interpreted subdivision 4 of this section in such a manner that the limitations period does not commence on the date of the tortfeasor’s conduct under certain circumstances. Adams v. Armstrong World Indus., Inc., 847 F.2d 589 (9th Cir. 1988).

Plaintiff’s complaint was barred by the two-year statute of limitation on personal injuries found in this section where there was objective medical proof supporting the existence of plaintiff’s asbestos-related injury in a July 1992 report, and plaintiff did not file the claim until October 1994. Brennan v. Owens-Corning Fiberglas Corp., 134 Idaho 800, 10 P.3d 749 (2000).

Attorney’s Fees.

Action on policy of life insurance in which temporary contract of insurance was found to exist was governed by five year limitation of§ 5-216 and, therefore, attorney’s fees being part of the relief granted in the case the limitation of§ 5-216 also applied to such fees and not the two year limitation of subdivision 2 of this section. Dunford v. United of Omaha, 95 Idaho 282, 506 P.2d 1355 (1973).

In a malpractice action by a real estate loan broker against an attorney who helped close the loan in question, which was based on the attorney’s failure to advise the broker as to the attorney’s knowledge of the true value of the property, statute of limitations began to run on the date the broker suffered damages by incurring attorney fees in defending against an action brought by lenders. Griggs v. Nash, 116 Idaho 228, 775 P.2d 120 (1989).

Constitutionality.

Subdivision 4 of this section is not constitutionally infirm and does not violate either the due process or equal protection clauses of the United States Constitution. Holmes v. Iwasa, 104 Idaho 179, 657 P.2d 476 (1983).

Subdivision 4 of this section does not violateIdaho Const., Art. I, § 18, despite the fact that it eliminates certain classes of plaintiffs. Adams v. Armstrong World Indus., Inc., 664 F. Supp. 463 (D. Idaho 1987), rev’d on other grounds, 847 F.2d 589 (9th Cir. 1988).

Subsection 4 of this section does not violateIdaho Const., Art. I, § 18 as that section merely admonishes the courts to dispense justice and to secure citizens the rights and remedies afforded by the legislature or by the common law; it does not create any substantive rights. Hawley v. Green, 117 Idaho 498, 788 P.2d 1321 (1990).

Continuous Tort.

Doctrine of Equitable Estoppel.

Where a real estate agent alleged outrageous conduct by real estate developers in 2003, which ceased and did not resume until 2005, the two-year statute of limitations for the 2003 conduct expired in 2005, and the resumption of outrageous conduct in 2005 did not revive the real estate agent’s 2003 claim under a continuous tort theory. Johnson v. McPhee, 147 Idaho 455, 210 P.3d 563 (Ct. App. 2009). Doctrine of Equitable Estoppel.

The language of this section does not demonstrate or imply that the doctrine of equitable estoppel be repealed or abolished. Williams v. Blakley, 114 Idaho 323, 757 P.2d 186 (1987).

City failed to produce evidence supporting its equitable estoppel claim where the city did not show that its attorneys had made a false representation or concealed a material fact with actual or constructive knowledge of the truth when they advised the city before and during the litigation filed against the city. City of McCall v. Buxton, 146 Idaho 656, 201 P.3d 629 (2009).

Effect of Federal Injunction.

Where prosecution of action was barred by federal injunction in reorganization proceedings, another action brought in conformity with federal proceedings was not barred. Doxstater v. Northwest Cities Gas Co., 65 Idaho 814, 154 P.2d 498 (1944).

Failure to Raise Issue.

Where the plaintiff did not allege fraudulent or intentional concealment in his malpractice complaint, nor did he raise the issue of equitable estoppel in his objection to the defendant’s motions for summary judgment or during oral argument, the court would not consider these issues. Rice v. Litster, 132 Idaho 897, 980 P.2d 561 (1999).

Fraudulent Concealment.

Summary judgment was properly granted to a father in a tort case based on alleged sexual molestation of two daughters since the action was time barred. The fraudulent concealment exception in this section applies to professional malpractice claims only. Glaze v. Deffenbaugh, 144 Idaho 829, 172 P.3d 1104 (2007).

Subsection (4) of this section did not apply, where the client was put on inquiry of the law firm’s alleged malpractice more than one year prior to filing her claim. Walsh v. Swapp Law, PLLC, — Idaho —, 462 P.3d 607 (2020).

HIV Infection.

For plaintiff who was a hemophiliac who claimed to have been infected with HIV by provider of blood-clotting agent, the two-year statute of limitations did not begin to run until the date that plaintiff tested positive for HIV. Doe v. Cutter Biological, 844 F. Supp. 602 (D. Idaho 1994).

Knowledge of Cause of Action.

Where plaintiff’s suit for a malpractice occurring in 1948 was based upon the discovery of a sponge in plaintiff’s body revealed by exploratory operation in 1961, cause of action was not barred by the statute of limitations even though the suit was not brought until 1962. Billings v. Sisters of Mercy, 86 Idaho 485, 389 P.2d 224 (1964).

In an action against physician by patient and her husband to recover for malpractice involving alleged misdiagnosis and negligent treatment, the statute of limitations did not begin to run until the plaintiff knew or should have known of the defendant’s negligence. Renner v. Edwards, 93 Idaho 836, 475 P.2d 530 (1969). Where plaintiff set forth all facts necessary to show his knowledge of the alleged injury at the time of filing verified complaint in prior action in 1966, the subsequent action instituted in 1970 along with the alleged cause no later than 1966 was barred by the statute although subsequent complaint included that the alleged malpractice was discovered in 1969. Patterson v. Twin Falls County, 94 Idaho 460, 490 P.2d 327 (1971).

Summary judgment based on statute of limitations was upheld because plaintiff failed to establish a triable issue of material fact respecting fraudulent concealment of bullet in the body, where plaintiff’s sole affidavit contained no reference to the time when the bullet was discovered but a general statement that it was discovered within two years, no time as to feeling of pain was specified, surgeon who found bullet was not identified and no discussion of particulars as to alleged misleading by surgeon was given. Johnson v. Gorton, 94 Idaho 595, 495 P.2d 1 (1972).

Fraudulent concealment does toll the statute of limitations in a malpractice action until plaintiff discovers or should have discovered injury resulting from negligent treatment. Johnson v. Gorton, 94 Idaho 595, 495 P.2d 1 (1972).

Where a secured creditor filed a professional malpractice action against the debtor’s accountants within two years after it became aware that it would not be able to recover the full amount of the debtor’s indebtedness to it from the bankruptcy trustee, the action was not time barred; the action did not accrue until the bankruptcy court resolved the creditor’s claim against the debtor because it was not until then that the creditor suffered some damage, as it became apparent that the creditor would not be able to fully recompense from the bankruptcy estate the amount which it had loaned to the debtor. Mack Fin. Corp. v. Smith, 111 Idaho 8, 720 P.2d 191 (1986).

Damage to the homeowners’ house was objectively ascertainable during the spring or summer of 1997, when the homeowners and an architect determined the western side of the house was observably sinking, but no complaint was filed until September 3, 1999; because there was objectively ascertainable damage more than two years before the filing date, the homeowners’ negligence claim against the engineering firm was beyond the statute of limitations. Blahd v. Richard B. Smith, Inc., 141 Idaho 296, 108 P.3d 996 (2005).

Malpractice Actions.

Action for malpractice is not based on contract but on negligence and is governed by this section. Trimming v. Howard, 52 Idaho 412, 16 P.2d 661 (1932).

Where, in malpractice action, the accident occurred on May 28, 1931, and plaintiff first consulted defendant on that day for treatment, complaint filed on December 5, 1933 was not barred, in view of evidence that on January 28, 1932 defendant advised plaintiff to throw away his crutches and put weight on his leg and that plaintiff was damaged by following this advice. Moore v. Tremelling, 100 F.2d 39 (9th Cir. 1938).

Running of statute of limitation applicable to malpractice cases is not postponed until the injury has been or shall have been discovered, but begins to run when actual post-operative treatment by defendant doctor has terminated. Summers v. Wallace Hosp., 276 F.2d 831 (9th Cir. 1960).

Based on this section and§ 5-201, civil action to recover damages for injury to the person, caused by the wrongful act or negligence of another can only be commenced within two years after the cause of action shall have accrued. Billings v. Sisters of Mercy, 86 Idaho 485, 389 P.2d 224 (1964). The gist of a malpractice action is negligence and not a breach of the contract of employment. Billings v. Sisters of Mercy, 86 Idaho 485, 389 P.2d 224 (1964).

Where a foreign object is negligently left in a patient’s body by his physician and the patient is in ignorance of the fact and consequently of his right of action for malpractice, the cause of action does not accrue until the patient learns of, or in the exercise of reasonable care and diligence should have learned of, the presence of such foreign object in his body. Billings v. Sisters of Mercy, 86 Idaho 485, 389 P.2d 224 (1964).

The limitation of subdivision 4 of this section with respect to an action for medical malpractice based upon a faulty diagnosis begins to run at the time of the alleged malpractice and not when plaintiff knew, or by the exercise of reasonable diligence should have known, of such malpractice and the resulting injury to her. Owens v. White, 380 F.2d 310 (9th Cir. 1967) (Distinguishing Billings v. Sisters of Mercy , 86 Idaho 485, 389 P.2d 224 (1964), which applies only to foreign object cases).

The court, in an action against physician by patient and her husband to recover for malpractice involving alleged misdiagnosis and negligent treatment, did not improperly indulge in judicial legislation in defining time of accrual of cause of action as being the time of discovery of the negligent act. Renner v. Edwards, 93 Idaho 836, 475 P.2d 530 (1969).

In malpractice action filed September 28, 1972 for alleged malpractice that occurred June 22, 1962, in order to overcome statute of limitations bar raised by defendant’s motion for summary judgment plaintiff was required to present sufficient materials to bring him within the discovery exception to the statute of limitations. Cook v. Soltman, 96 Idaho 187, 525 P.2d 969 (1974).

In malpractice action filed September 28, 1972 for alleged malpractice that occurred June 22, 1962 where plaintiff knew that shirt and tree were imbedded in his back and knew that the wound had not healed properly since it continuously caused him pain, such knowledge required him to be prompt and diligent in avoiding further deterioration of his condition, and as he failed to do so his action did not come within the discovery exception and was barred by the statute of limitations. Cook v. Soltman, 96 Idaho 187, 525 P.2d 969 (1974).

Where surgery was performed on plaintiff on March 9, 1971, but where the surgical needle which was left in plaintiff’s abdomen was not discovered until July 31, 1973, the one year statute of limitations provided for in subdivision 4 of this section barred plaintiff’s cause of action for malpractice brought on December 24, 1974. Stoner v. Carr, 97 Idaho 641, 550 P.2d 259 (1976).

Clear legislative intent of subdivision 4 is not to create an additional “discovery” exception for legal malpractice actions. Martin v. Clements, 98 Idaho 906, 575 P.2d 885 (1978).

Legal malpractice cause of action brought by decedent’s heirs in regard to probate of father’s estate in 1954 accrued in 1954 at the time of the alleged negligence, rather than in 1972 when plaintiffs discovered the alleged negligence; thus, this section, as amended, imposing two-year limitation on professional malpractice actions could not be applied because to do so would be to give retroactive effect to the statute. Martin v. Clements, 98 Idaho 906, 575 P.2d 885 (1978).

There is no intent, either explicit or implicit, in the language of this section to eliminate the doctrine of equitable estoppel in professional malpractice actions. Twin Falls Clinic & Hosp. Bldg. Corp. v. Hamill, 103 Idaho 19, 644 P.2d 341 (1982).

Although the language of this section indicates that the statute of limitations is not to be extended by a continuing relationship, this section does not indicate any clear intent to abolish the doctrine of estoppel; estoppel does not depend solely upon the existence of a continuing relationship and estoppel does not “extend” a statute of limitations, but rather prevents a party from pleading and utilizing the statute of limitations as a bar, although the time limit of the statute of limitations may have run. Twin Falls Clinic & Hosp. Bldg. Corp. v. Hamill, 103 Idaho 19, 644 P.2d 341 (1982). The gist of a malpractice action is negligence and not a breach of the contract of employment. Billings v. Sisters of Mercy, 86 Idaho 485, 389 P.2d 224 (1964).

Where a foreign object is negligently left in a patient’s body by his physician and the patient is in ignorance of the fact and consequently of his right of action for malpractice, the cause of action does not accrue until the patient learns of, or in the exercise of reasonable care and diligence should have learned of, the presence of such foreign object in his body. Billings v. Sisters of Mercy, 86 Idaho 485, 389 P.2d 224 (1964).

The limitation of subdivision 4 of this section with respect to an action for medical malpractice based upon a faulty diagnosis begins to run at the time of the alleged malpractice and not when plaintiff knew, or by the exercise of reasonable diligence should have known, of such malpractice and the resulting injury to her. Owens v. White, 380 F.2d 310 (9th Cir. 1967) (Distinguishing Billings v. Sisters of Mercy , 86 Idaho 485, 389 P.2d 224 (1964), which applies only to foreign object cases).

The court, in an action against physician by patient and her husband to recover for malpractice involving alleged misdiagnosis and negligent treatment, did not improperly indulge in judicial legislation in defining time of accrual of cause of action as being the time of discovery of the negligent act. Renner v. Edwards, 93 Idaho 836, 475 P.2d 530 (1969).

In malpractice action filed September 28, 1972 for alleged malpractice that occurred June 22, 1962, in order to overcome statute of limitations bar raised by defendant’s motion for summary judgment plaintiff was required to present sufficient materials to bring him within the discovery exception to the statute of limitations. Cook v. Soltman, 96 Idaho 187, 525 P.2d 969 (1974).

In malpractice action filed September 28, 1972 for alleged malpractice that occurred June 22, 1962 where plaintiff knew that shirt and tree were imbedded in his back and knew that the wound had not healed properly since it continuously caused him pain, such knowledge required him to be prompt and diligent in avoiding further deterioration of his condition, and as he failed to do so his action did not come within the discovery exception and was barred by the statute of limitations. Cook v. Soltman, 96 Idaho 187, 525 P.2d 969 (1974).

Where surgery was performed on plaintiff on March 9, 1971, but where the surgical needle which was left in plaintiff’s abdomen was not discovered until July 31, 1973, the one year statute of limitations provided for in subdivision 4 of this section barred plaintiff’s cause of action for malpractice brought on December 24, 1974. Stoner v. Carr, 97 Idaho 641, 550 P.2d 259 (1976).

Clear legislative intent of subdivision 4 is not to create an additional “discovery” exception for legal malpractice actions. Martin v. Clements, 98 Idaho 906, 575 P.2d 885 (1978).

Legal malpractice cause of action brought by decedent’s heirs in regard to probate of father’s estate in 1954 accrued in 1954 at the time of the alleged negligence, rather than in 1972 when plaintiffs discovered the alleged negligence; thus, this section, as amended, imposing two-year limitation on professional malpractice actions could not be applied because to do so would be to give retroactive effect to the statute. Martin v. Clements, 98 Idaho 906, 575 P.2d 885 (1978).

There is no intent, either explicit or implicit, in the language of this section to eliminate the doctrine of equitable estoppel in professional malpractice actions. Twin Falls Clinic & Hosp. Bldg. Corp. v. Hamill, 103 Idaho 19, 644 P.2d 341 (1982).

Although the language of this section indicates that the statute of limitations is not to be extended by a continuing relationship, this section does not indicate any clear intent to abolish the doctrine of estoppel; estoppel does not depend solely upon the existence of a continuing relationship and estoppel does not “extend” a statute of limitations, but rather prevents a party from pleading and utilizing the statute of limitations as a bar, although the time limit of the statute of limitations may have run. Twin Falls Clinic & Hosp. Bldg. Corp. v. Hamill, 103 Idaho 19, 644 P.2d 341 (1982). A discovery exception to the statute of limitations for professional malpractice, under subdivision 4 of this section, should not be engrafted by the supreme court. Twin Falls Clinic & Hosp. Bldg. Corp. v. Hamill, 103 Idaho 19, 644 P.2d 341 (1982).

An action founded in contract and arising out of the design or construction of improvements to real property must be brought within five years from the date of the completion of the construction, and a cause of action founded in professional malpractice arising out of the design or construction of improvements to real property must be brought within two years of the discovery of the alleged malpractice and in no event later than eight years following the completion of the construction. Twin Falls Clinic & Hosp. Bldg. Corp. v. Hamill, 103 Idaho 19, 644 P.2d 341 (1982).

The statutory language, “condition or matter complained of” in subdivision 4 of this section means the condition which ultimately is alleged to constitute the malpractice or negligence of the doctor. Reis v. Cox, 104 Idaho 434, 660 P.2d 46 (1982).

Where a patient with eyesight problems delayed nearly 23 months after an ophthalmologist discovered his glaucoma in January of 1976, before filing his malpractice action in December, 1977 against an optometrist who had examined him in November of 1975 and had incorrectly determined that he did not have glaucoma, the patient’s claim for professional malpractice was barred by subdivision 4 of this section, even though the optometrist had ordered bifocals for the patient in December of 1975 and fitted them to the patient’s head in January of 1976, because subdivision 4 expressly states that any continuing professional relationship does not extend the limitations period. Holmes v. Iwasa, 104 Idaho 179, 657 P.2d 476 (1983).

Where the record revealed no evidence that the defendant’s optometrist made any statements or took any action in an effort to induce plaintiff’s patient to delay in bringing suit, the optometrist was not estopped from asserting the statute of limitations as a defense. Holmes v. Iwasa, 104 Idaho 179, 657 P.2d 476 (1983).

A cause of action presented in malpractice is not a contract action; the gist of a malpractice action is negligence, not a breach of contract of employment. Ogle v. De Sano, 107 Idaho 872, 693 P.2d 1074 (Ct. App. 1984).

Subdivision 4 of this section is an integral part of the Idaho Products Liability Act (see§ 6-1401 et seq.) because it defines “accrual” of causes of action under the act; thus, subdivision 4 of this section is substantive, not procedural. Jenkins v. Armstrong World Indus., Inc., 643 F. Supp. 17 (D. Idaho 1985).

A cause of action for professional accounting malpractice in the form of negligent preparation of income tax returns accrued when the internal revenue service disputed the returns and assessed penalties and interest. Streib v. Veigel, 109 Idaho 174, 706 P.2d 63 (1985).

The plaintiff’s medical malpractice action was not time barred, where the panel held hearings within 90 days from the date the claim was filed with the state board of medicine, but the panel did not reach a decision within 90 days, there was no evidence that the panel was unable to decide the issues before it or that the panel ever summarily concluded the proceedings, and the plaintiff filed her claim in district court within 30 days of the filing of the panel’s decision. James v. Buck, 111 Idaho 708, 727 P.2d 1136 (1986). The latent circumstance of increased probability of embolization, resulting in possible future adverse medical consequences was far too attenuated an “occurrence” to give rise to a viable cause of action such as would activate a statute of limitations; plaintiff’s cause of action arose either at the time of his stroke in which case the action was timely filed or on date that plaintiff visited defendant complaining of chest pains, if the occurrences of that day were shown to have been damage caused by embolization from heart valve due to defendants’ alleged inadequate treatment, in which case action was untimely filed. Werner v. American-Edwards Labs., Inc., 113 Idaho 434, 745 P.2d 1055 (1987).

Subdivision 4 of this section provides two exceptions to the accrual-on-occurrence rule: where foreign objects are left in a patient’s body, or when the fact of damage has, for the purpose of escaping responsibility therefor, been fraudulently and knowingly concealed from the injured party by an alleged wrongdoer standing at the time of the wrongful act, neglect, or breach in a professional or commercial relationship with the injured party. Zumwalt v. Stephan, Balleisen & Slavin, 113 Idaho 822, 748 P.2d 406 (Ct. App. 1987).

A third-party action by a real estate loan broker against an attorney who helped close a loan was held to be an action for malpractice rather than one for indemnification or contribution where the complaint alleged a breach of fiduciary duty and negligence on the part of the attorney for failing to clear title to the property involved and failing to advise as to the property’s true value; hence, the two-year statute of limitations in this section applied. Griggs v. Nash, 116 Idaho 228, 775 P.2d 120 (1989).

The existence or effect of any alleged negligence regarding the attorneys’ strategy and legal advice as to the statute of limitations depended upon the outcome of the litigation against the city by the insurer and contractor; there could not be objective proof of actual damage until the litigation was concluded, and the fact that the city was sued did not, by itself, constitute a breach of duty by the attorneys. City of McCall v. Buxton, 146 Idaho 656, 201 P.3d 629 (2009).

Complaint alleging that the attorneys negligently advised the city to release claims against an engineer and failed to advise the city of a conflict of interest regarding their advice to release the engineer from liability began to run when the city released its claim against the engineer, but the city did not file its malpractice action until four years later; the day the city released the engineer from liability was the date on which the city lost its opportunity to recover against the engineer and the date on which the damage occurred if the attorneys negligently failed to advise the city to release the engineer. City of McCall v. Buxton, 146 Idaho 656, 201 P.3d 629 (2009).

Where the seller in a real estate transaction refused to return their earnest money, allegedly based on unclear language drafted by the buyer’s attorneys, the buyer’s cause of action for professional negligence against the attorneys was barred; some damage occurred more than two years prior to the commencement of the action. Reynolds v. Trout Jones Gledhill Fuhrman, P.A., 154 Idaho 21, 293 P.3d 645 (2013).

District court erred in granting summary judgment in favor of an attorney and in dismissing his client’s legal malpractice action arising from the attorney’s representation of the client in a criminal case in which the client was later exonerated, because the client’s malpractice cause of action did not begin to accrue until he was exonerated on July 10, 2014. The district court erred in holding that the client’s malpractice cause of action, which was filed on February 17, 2015, was barred by the two year statute of limitations. Molen v. Christian, 161 Idaho 577, 388 P.3d 591 (2017). Subsection (4) barred a medical malpractice action, where a patient’s cancer was objectively ascertainable and capable of being diagnosed when it first became symptomatic for the patient, but the patient’s oncologist conceded uncertainty and the patient waited two years after a biopsy to pursue a legal claim. Wyman v. Eck, 161 Idaho 723, 390 P.3d 449 (2017).

Trial court correctly treated all of a former client’s claims against an attorney as subject to the two-year statute of limitations for professional malpractice, rather than the five-year statute of limitations for a contract dispute, because all of the client’s claims arose out of the attorney’s alleged failure to perform services in connection with the representation of the client. There were no contractual provisions which guaranteed the outcome of the representation or specified an elevated standard of care which were breached. Greenfield v. Smith, 162 Idaho 246, 395 P.3d 1279 (2017).

— Accrual.

In a malpractice action for alleged failure of doctor to remove two drainage tubes he put in plaintiff, the statute of limitations did not begin to run until discovery of the drains or until they should have been discovered by use of reasonable care. Johnson v. Stoddard, 96 Idaho 230, 526 P.2d 835 (1974).

An action for professional malpractice shall be deemed to have accrued for the purposes of subsection 4 of this section only when there is objective proof that would support the existence of some actual damage. Chicoine v. Bignall, 122 Idaho 482, 835 P.2d 1293 (1992).

Where the latest possible date that plaintiff’s legal malpractice cause of action accrued under subdivision 4 of this section was November 16, 1983, the date the underlying personal injury action was negligently allowed to be dismissed by respondents, and where it was only on that date, following either a far removed antecedent negligent act or the continuing negligence of respondents, that appellant was damaged, the limitation period applicable to legal malpractice action expired November 16, 1985 and barred plaintiff’s complaint, which was not filed until March 1987. Tingley v. Harrison, 125 Idaho 86, 867 P.2d 960 (1994).

When professional malpractice involves fraudulent or intentional concealment of the wrongdoing, even when the initial wrongdoing is merely negligent, the statute of limitation contained in subdivision 4 of this section is tolled until the injured party “knows or in the exercise of reasonable care should have been put on inquiry regarding the matter complained of”; after that date, the statute of limitation period is one year, after which an action for professional malpractice is barred. Tingley v. Harrison, 125 Idaho 86, 867 P.2d 960 (1994).

Grant of summary judgment in favor of defendant attorney on a malpractice claim on the grounds that the applicable statute of limitations of subdivision 4 of this section had expired was proper because plaintiff was actually damaged when it accrued legal fees due to its need to hire new counsel to oversee damage control in a matter involving work done by the former attorney and that event, which occurred more than two years prior to the commencement of the malpractice action, started the running of the statute of limitations. B & K Fabricators, Inc. v. Sutton, 126 Idaho 934, 894 P.2d 167 (Ct. App. 1995).

The one-year limitation contained in the concealment exception of subsection 4 of this section begins to run when the injured party knows or in the exercise of reasonable care should have been put on inquiry of the alleged malpractice, not when the injured party knows or was put on inquiry of the fact of damage. Bliss Valley Foods, Inc. v. Walker, 127 Idaho 12, 896 P.2d 338 (1995).

Where a client suffered some actual damage when a trial court entered judgment against him in an underlying action for which the client claimed attorney malpractice, the two-year limitation period began to run at the time of the judgment, even though the client did not know until the judgment was affirmed on appeal that his counterclaim and defenses would not be revived. Rice v. Litster, 132 Idaho 897, 980 P.2d 561 (1999). Subsection (4) barred a medical malpractice action, where a patient’s cancer was objectively ascertainable and capable of being diagnosed when it first became symptomatic for the patient, but the patient’s oncologist conceded uncertainty and the patient waited two years after a biopsy to pursue a legal claim. Wyman v. Eck, 161 Idaho 723, 390 P.3d 449 (2017).

Trial court correctly treated all of a former client’s claims against an attorney as subject to the two-year statute of limitations for professional malpractice, rather than the five-year statute of limitations for a contract dispute, because all of the client’s claims arose out of the attorney’s alleged failure to perform services in connection with the representation of the client. There were no contractual provisions which guaranteed the outcome of the representation or specified an elevated standard of care which were breached. Greenfield v. Smith, 162 Idaho 246, 395 P.3d 1279 (2017).

— Accrual.

In a malpractice action for alleged failure of doctor to remove two drainage tubes he put in plaintiff, the statute of limitations did not begin to run until discovery of the drains or until they should have been discovered by use of reasonable care. Johnson v. Stoddard, 96 Idaho 230, 526 P.2d 835 (1974).

An action for professional malpractice shall be deemed to have accrued for the purposes of subsection 4 of this section only when there is objective proof that would support the existence of some actual damage. Chicoine v. Bignall, 122 Idaho 482, 835 P.2d 1293 (1992).

Where the latest possible date that plaintiff’s legal malpractice cause of action accrued under subdivision 4 of this section was November 16, 1983, the date the underlying personal injury action was negligently allowed to be dismissed by respondents, and where it was only on that date, following either a far removed antecedent negligent act or the continuing negligence of respondents, that appellant was damaged, the limitation period applicable to legal malpractice action expired November 16, 1985 and barred plaintiff’s complaint, which was not filed until March 1987. Tingley v. Harrison, 125 Idaho 86, 867 P.2d 960 (1994).

When professional malpractice involves fraudulent or intentional concealment of the wrongdoing, even when the initial wrongdoing is merely negligent, the statute of limitation contained in subdivision 4 of this section is tolled until the injured party “knows or in the exercise of reasonable care should have been put on inquiry regarding the matter complained of”; after that date, the statute of limitation period is one year, after which an action for professional malpractice is barred. Tingley v. Harrison, 125 Idaho 86, 867 P.2d 960 (1994).

Grant of summary judgment in favor of defendant attorney on a malpractice claim on the grounds that the applicable statute of limitations of subdivision 4 of this section had expired was proper because plaintiff was actually damaged when it accrued legal fees due to its need to hire new counsel to oversee damage control in a matter involving work done by the former attorney and that event, which occurred more than two years prior to the commencement of the malpractice action, started the running of the statute of limitations. B & K Fabricators, Inc. v. Sutton, 126 Idaho 934, 894 P.2d 167 (Ct. App. 1995).

The one-year limitation contained in the concealment exception of subsection 4 of this section begins to run when the injured party knows or in the exercise of reasonable care should have been put on inquiry of the alleged malpractice, not when the injured party knows or was put on inquiry of the fact of damage. Bliss Valley Foods, Inc. v. Walker, 127 Idaho 12, 896 P.2d 338 (1995).

Where a client suffered some actual damage when a trial court entered judgment against him in an underlying action for which the client claimed attorney malpractice, the two-year limitation period began to run at the time of the judgment, even though the client did not know until the judgment was affirmed on appeal that his counterclaim and defenses would not be revived. Rice v. Litster, 132 Idaho 897, 980 P.2d 561 (1999). Trial court did not err when it granted summary judgment to an attorney who had been sued for professional negligence where suit was time barred because it had been brought more than two years after the damage was objectively discernable to client. Lapham v. Stewart, 137 Idaho 582, 51 P.3d 396 (2002).

— Continuing Negligence.

By the 1971 amendment to this section, the legislature expressly rejected the theory of continuing negligence advocated by the plaintiff in a legal malpractice action and, thus, plaintiff was barred from recovery under subdivision 4 of this section. Pichon v. Benjamin, 108 Idaho 852, 702 P.2d 890 (Ct. App. 1985).

— Evidence.

The evidence was conflicting as to whether the parties intended the oral settlement reached over the phone to be binding or whether they intended the written release mailed later to be the binding settlement. Therefore, the trial court should not have granted summary judgment on the basis of this section. Thompson v. Pike, 122 Idaho 690, 838 P.2d 293 (1992); Thompson v. Pike, 125 Idaho 897, 876 P.2d 595 (1994).

— Foreign Objects.

The legislative intent to confine the discovery exception of subdivision 4 of this section to cases involving foreign objects and fraudulent concealment is clear. Holmes v. Iwasa, 104 Idaho 179, 657 P.2d 476 (1983).

Normally, an intrauterine device (I.U.D.) in situ will not be considered a foreign object under this section; devices deliberately placed in the body, with the patient’s knowledge and consent, which are within the body intentionally are not “foreign objects.” Ogle v. De Sano, 107 Idaho 872, 693 P.2d 1074 (Ct. App. 1984).

There was no denial of equal protection underIdaho Const., Art. I, § 2 where a plaintiff was held to the statute of limitations set forth in this section rather than the three year statute for medical malpractice when the cause of action was based upon “foreign objects” or “fraudulent concealment” theories. Ogle v. De Sano, 107 Idaho 872, 693 P.2d 1074 (Ct. App. 1984).

Where an intrauterine device (I.U.D.) was negligently left in the body, after the surgeon represented to the patient that it has been removed, the I.U.D. was no longer deliberately or intentionally within the body; it was inadvertently or unintentionally left in the body; thus the I.U.D. then becomes a foreign object within the meaning of this section. Ogle v. De Sano, 107 Idaho 872, 693 P.2d 1074 (Ct. App. 1984).

Under subdivision 4 of this section, if either the foreign object or the fraudulent concealment exception applies, the cause of action for medical malpractice accrues not when the plaintiff has nonspecific symptoms, but when the plaintiff should reasonably have been on notice of the specific type of injury that was caused by the defendant’s tortious act. Allen v. A.H. Robins Co., 752 F.2d 1365 (9th Cir. 1985).

— Fraud and Deceit.

Because a permanent plate installed during spinal surgery was intentionally placed in the patient’s body for the purpose of medical treatment, it was not a foreign object, and the foreign object exception to this rule was not applicable. Stuard v. Jorgenson, 150 Idaho 701, 249 P.3d 1156 (2011). — Fraud and Deceit.

An action for fraud and deceit is not within the purview of a professional malpractice action. Umphrey v. Sprinkel, 106 Idaho 700, 682 P.2d 1247 (1983).

An action for fraud or deceit against a professional is covered by the statute of limitations for fraud, subdivision 4 of§ 5-218, rather than the statute of limitations for professional malpractice, subdivision 4 of this section. Umphrey v. Sprinkel, 106 Idaho 700, 682 P.2d 1247 (1983).

Assuming, without deciding, that real estate agents and brokers are professionals for the purpose of subdivision 4 of this section, nevertheless, an action for fraudulent misrepresentation against a real estate agent and broker does not fall within the protective embrace of the professional malpractice statute. Umphrey v. Sprinkel, 106 Idaho 700, 682 P.2d 1247 (1983).

Where the plaintiff alleged that the manufacturer fraudulently concealed from doctors and patients the serious and potentially permanent effects of the Dalkon Shield, this constituted a sufficient allegation that the manufacturer fraudulently concealed the “fact of damage” for which the plaintiff now seeks redress; accordingly, summary judgment was inappropriate. Allen v. A.H. Robins Co., 752 F.2d 1365 (9th Cir. 1985).

When professional malpractice involves fraudulent or intentional concealment of the wrongdoing, even when the initial wrongdoing is merely negligent, the statute of limitations contained in subsection 4 of this section is tolled until the injured party “knows or in the exercise of reasonable care should have been put on inquiry regarding the . . . matter complained of,” and, after that date, the statute of limitations period is one year, after which an action for professional malpractice is barred. McCoy v. Lyons, 120 Idaho 765, 820 P.2d 360 (1991).

In an action against the Boy Scouts of America, and an affiliated church arising from the alleged molestation of a boy scout by a troop leader during the late 1960’s, the three-year fraud statute of limitations under§ 5-218(4), rather than the two-year personal injury statute of limitations under subsection (4) of this section, applied to the former boy scout’s claim of institutional fraud by omission; the former boy scout specifically alleged fraud and assumed the heavy duty of proving an intentional tort by clear and convincing evidence. Doe v. Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints, 837 F. Supp. 2d 1145 (D. Idaho 2011).

— License Required.

There exists at a minimum a threshold requirement that the person, firm, association, entity or corporation be licensed to perform such services and if the particular defendant is not so licensed to perform the type of service rendered, then the provision creating a two-year statute of limitations for professional malpractice is not applicable. Owyhee County v. Rife, 100 Idaho 91, 593 P.2d 995 (1979).

In June 1971, the defendants were not “certified public accountants,” and at that time they clearly were not engaged in professional services for which they were licensed; therefore, the alleged acts of malpractice of the defendants cannot be denominated as of June, 1971 to be “professional malpractice” and hence the two-year limitation period is inapplicable to the causes of action against them relating to that fiscal year (1970). Owyhee County v. Rife, 100 Idaho 91, 593 P.2d 995 (1979). Subdivision 4 of this section did not apply in an action alleging negligence in the installation of a water system, where neither the defendant nor the contractor hired to install the water system were licensed plumbers. Hibbler v. Fisher, 109 Idaho 1007, 712 P.2d 708 (Ct. App. 1985).

— Limitations.

Summary judgment on ground that action was barred by statute of limitations was improperly granted in medical malpractice action where there was an issue of material fact as to the date on which plaintiff was informed by surgeon that the foreign body appearing in X rays was not an undissolved suture but was a piece of a surgical drain which had not been removed after surgery. Reis v. Cox, 104 Idaho 434, 660 P.2d 46 (1982).

Where plaintiff in medical malpractice action consulted numerous doctors, none of whom ever suggested that the cause of her condition was a foreign object which was left in her body after surgery, plaintiff could not be attributed with sufficient knowledge as a result of such evaluations to put her “on inquiry regarding the condition or matter complained of” within the meaning of subdivision 4 of this section. Reis v. Cox, 104 Idaho 434, 660 P.2d 46 (1982).

In medical malpractice suit, summary judgment on the grounds that the action was barred by the statute of limitations was properly granted where a woman discovered that an intrauterine device (I.U.D.) was still in her body on February 21, 1979, even though it was supposed to have been removed on April 28, 1977 and her malpractice suit was not filed until May 2, 1980 — three years after the negligent act and 14 and one-half months after the discovery of the I.U.D. Ogle v. De Sano, 107 Idaho 872, 693 P.2d 1074 (Ct. App. 1984).

The date of filing of the panel’s decision and recommendations with the state board of medicine establishes the start of the additional 30-day tolling of the statute of limitations contemplated by the legislative scheme; if the panel is unable to decide the issues before it within 90 days, and it summarily concludes the proceedings, the date of filing a summary conclusion so advising the board of medicine and the parties shall be the date from which the additional 30 days of tolling will begin to run. James v. Buck, 111 Idaho 708, 727 P.2d 1136 (1986).

In a legal malpractice action against a law firm, alleging negligent representation in a bankruptcy proceeding, the district court did not err in granting the summary judgment for the defendant, as the two-year statute of limitations for professional malpractice set forth in subdivision 4 of this section ran from the date that the bankruptcy plan was adopted and the date upon which plaintiff suffered some damage, and the action, which was filed more than two years later, was untimely. Treasure Valley Bank v. Killen & Pittenger, 112 Idaho 357, 732 P.2d 326 (1987).

Where the attorney knew of the injury caused to the client when the property was conveyed to the bona fide purchaser, but failed to disclose this information despite a duty to speak in the attorney-client relationship, the attorney would be estopped to assert a statute of limitation defense to the extent that the client’s delay in filing suit against him for malpractice was attributable to his failure to disclose the fact of injury; however, since the client became independently aware of the fact of injury no later than July 14, 1979, even if he had two years thereafter to file suit, his complaint on August 3, 1981, was untimely unless the delay in filing suit was caused by some additional conduct of the attorney, and the attorney’s offer to “look into it” following a meeting between the two did not withhold or attempt to conceal any fact of injury to the client so as to create such an estoppel. Zumwalt v. Stephan, Balleisen & Slavin, 113 Idaho 822, 748 P.2d 406 (Ct. App. 1987). Where release of lis pendens on real property was filed in wrong county on March 13, 1986, third party investor discovered that lis pendens had not been released in proper county and withdrew offer of investment in April, 1987, and cause of action did not accrue until some damage had occurred; since plaintiffs did not suffer damages as contemplated in subsection 4 of this section until withdrawal of investor’s financial support, action of legal malpractice filed January 6, 1989 was not barred by two year limitation of subsection 4 of this section. Bonz v. Sudweeks, 119 Idaho 539, 808 P.2d 876 (1991).

For those causes of action sounding in professional malpractice without allegations of fraud, concealment or misrepresentation, such as attorney-defendant’s failure to explain to the heirs the significance of the deeds they were signing, the applicable statute of limitation is two years from the act or occurrence complained of or two years from the date plaintiffs incurred some damage; therefore, the trial court did not err in granting summary judgment on the counts alleging “negligent malpractice” because those claims did not allege fraud, concealment or misrepresentation and clearly accrued in 1977 when the heirs suffered some damage. McCoy v. Lyons, 120 Idaho 765, 820 P.2d 360 (1991).

The doctrine of continuing representation in professional malpractice actions is specifically barred by subsection 4 of this section. Fairway Dev. Co. v. Peterson, Moss, Olsen, Meacham & Carr, 124 Idaho 866, 865 P.2d 957 (1993).

Where there was objective proof that plaintiff suffered some actual damage when the district court dismissed plaintiff’s tax assessment claims on November 3, 1988, and where plaintiff did not bring its malpractice claim before the two-year statute of limitations ran on November 3, 1990, plaintiff’s suit alleging attorney committed malpractice by failing to appeal tax claims through the proper administrative channels was time barred by the statute of limitations. Fairway Dev. Co. v. Peterson, Moss, Olsen, Meacham & Carr, 124 Idaho 866, 865 P.2d 957 (1993).

Plaintiffs suffered “some damage” when they retained new tax counsel to resist I.R.S. claims, and the two-year statute of limitations contained in subsection 4 of this section began to run at that time. Elliott v. Parsons, 128 Idaho 723, 918 P.2d 592 (1996).

The plaintiff suffered some damage when the limitation period for bringing an action against the debtor expired, and the two-year statute of limitations for a malpractice action against the plaintiff’s attorney began to run at that time. Because the plaintiff delayed for more than two years before bringing the malpractice action, the plaintiff’s action was barred by the statute of limitation. Figueroa v. Merrick, 128 Idaho 840, 919 P.2d 1041 (Ct. App. 1996).

Two-year statute of limitations of subsection 4 of this section did not apply to the buyers’ suit against the real estate company and realtor where real estate agents did not provide professional services for purposes of subsection 4 of this section, and including real estate agents as rendering professional services would be inconsistent with the legislative intent in establishing a definition of professional services. Sumpter v. Holland Realty, Inc., 140 Idaho 349, 93 P.3d 680 (2004).

— Occurrence of Damage.

In many medical malpractice cases, the damage occurs contemporaneously with the negligent act, however, in some instances the damage may not occur until some time after the negligent act; in such cases, the statute does not begin to run until the occurrence of damage, and this is so because a cause of action cannot successfully be brought until some damage exists. Hawley v. Green, 117 Idaho 498, 788 P.2d 1321 (1990). Defendants pleading statute of limitations in a medical malpractice case had the burden of going forward with uncontradicted evidence showing that a tumor which appeared on the X-rays taken in excess of two years prior to commencement of action was progressive or otherwise dangerous to the health of the plaintiff, in order to establish that the plaintiff had incurred some damage at that time. Hawley v. Green, 117 Idaho 498, 788 P.2d 1321 (1990).

The determination of what constitutes “damage” for purposes of accrual of an action must be decided on the circumstances presented in each individual case. Bonz v. Sudweeks, 119 Idaho 539, 808 P.2d 876 (1991).

This section requires that “some damage” occur before the action for malpractice accrues and the limitation period begins to run. Bonz v. Sudweeks, 119 Idaho 539, 808 P.2d 876 (1991).

The “objectively ascertainable damage” standard provides an additional analytical tool to use in determining when “some damage” has occurred in all types of professional malpractice cases. Chicoine v. Bignall, 122 Idaho 482, 835 P.2d 1293 (1992).

Summary judgment barring medical claim based on statute of limitations was vacated, where determining time at which plaintiff was “damaged” could not be determined with medical certainty. Hawley v. Green, 124 Idaho 385, 860 P.2d 1 (Ct. App. 1993).

Where there was objective proof that plaintiff suffered some actual damage when the district court dismissed plaintiff’s tax assessment claims on November 3, 1988, and where plaintiff did not bring its malpractice claim before the two-year statute of limitations ran on November 3, 1990, plaintiff’s suit alleging attorney committed malpractice by failing to appeal tax claims through the proper administrative channels was time barred by the statute of limitations. Fairway Dev. Co. v. Peterson, Moss, Olsen, Meacham & Carr, 124 Idaho 866, 865 P.2d 957 (1993).

For the purposes of determining the date of accrual of a cause of action for a malpractice claim against attorney who handled a foreclosure action by bank against clients, “some damage” occurred on the date of the order of summary judgment against clients; the subsequent date of judgment and decree of foreclosure only established the amount of the damage award. Webster v. Hoopers, 126 Idaho 96, 878 P.2d 795 (Ct. App. 1994).

Because Idaho is not a discovery jurisdiction, the claims of brothers, alleging they had been sexually abused by a priest over twenty years earlier, were barred by the two-year statute of limitations in subsection 4 of this section because some objectively ascertainable damage occurred when the alleged abuse took place, even though the full effect may not have been experienced until years later. Bonner v. Roman Catholic Diocese, 128 Idaho 351, 913 P.2d 567 (1996).

Legal malpractice action was barred by a two-year statute of limitations because “some damage” occurred when property was transferred to a trust to gain a tax advantage since two clients could have reformed the trust at that time to correct any defects; therefore, a district court did not err by granting summary judgment in favor of several lawyers. Anderson v. Glenn, 139 Idaho 799, 87 P.3d 286 (2003).

Because any injuries resulting from a surgery performed in the wrong location were objectively ascertainable at that time and would have been discovered if a more thorough examination had been performed, a medical malpractice suit was time-barred, although the patient’s symptoms subsided after the surgery and he had no knowledge of any negligence. Stuard v. Jorgenson, 150 Idaho 701, 249 P.3d 1156 (2011).

Personal Injury Actions.

Action for malicious prosecution is not governed by subd. 4 or 5 of this section. Barton v. Woodward, 32 Idaho 375, 182 P. 916 (1919).

In action commenced in 1955 to recover general and special damages for personal injuries arising out of an automobile accident occurring in 1952, it was held that a statute which tolls the running of the statute of limitations when the defendant is out of the state when the cause of action accrues or departs from the state thereafter will be given effect even though service could have been obtained on an involuntary agent, in this case the secretary of state, during his absence. Staten v. Weiss, 78 Idaho 616, 308 P.2d 1021 (1957), overruled in part, Lipe v. Javelin Tire Co., 96 Idaho 723, 536 P.2d 291 (1975).

Both the builder and the owner of a building are covered by subdivision 4 of this section which contains the statute of limitations not only for professional malpractice actions and wrongful death actions, but, also, for actions to recover damages for an injury to the person and where causes of action were all based upon an injury plaintiff sustained due to the alleged negligence of architect, builder and owner, the limitation period of subdivision 4 of this section applied to all of the defendants. Stephens v. Stearns, 106 Idaho 249, 678 P.2d 41 (1984).

Civil rights claims in this state pursuant to 42 U.S.C. § 1983 must meet the two-year statute of limitations for personal injury actions under subdivision 4 of this section. Henderson v. State, 110 Idaho 308, 715 P.2d 978, cert. denied, 477 U.S. 907, 106 S. Ct. 3282, 91 L. Ed. 2d 571 (1986).

In claims for defamation and negligent infliction of emotional distress against defendants who were former clients claiming plaintiff had given them unsuitable investment recommendations that led to the Idaho department of finance denying plaintiffs’ applications for securities licenses, because the orders denying the applications were entered more than two years before the original complaint was filed, the district court was correct in concluding the claims were time barred under subsections 4 and 5 of this section. Rincover v. State, Dep’t of Fin., 128 Idaho 653, 917 P.2d 1293 (1996).

Minor’s claim involving sexual abuse against a school district, brought pursuant to 42 U.S.C. § 1983, was subject to the two-year limitations period under subdivision 4 of this section, not§ 6-1704, the statute of limitations for filing tort actions in child abuse cases. Osborn v. Salinas, 131 Idaho 456, 958 P.2d 1142 (1998).

Where plaintiff’s amended complaint against the decedent’s estate on his claim for personal injuries was filed nearly one year after the expiration of the two-year statute of limitations, his claim was time-barred unless it related back to the date of filing of the original complaint. Damian v. Estate of Pina, 132 Idaho 447, 974 P.2d 93 (Ct. App. 1999).

The relation back doctrine can not be satisfied where plaintiff’s original complaint was not served before the two-year statute of limitation for personal injury actions expired. Noreen v. Price Dev. Co., 135 Idaho 816, 25 P.3d 129 (Ct. App. 2001).

— Negligent Design and Construction.

A personal injury action founded upon the negligent design or construction of an improvement to real property must be brought within two years of the injuries, and in no event later than eight years following the completion of construction. Barab v. Plumleigh, 123 Idaho 980, 853 P.2d 635 (Ct. App. 1993).

Where homeowner commenced her personal injury action against previous homeowner within two years of sustaining injuries from the explosion of a woodburning stove, but where the construction of the stove, including the log-lighter device, was completed more than eight years before homeowner filed her complaint, her claim seeking to find the previous homeowner liable for the negligent design and construction of the stove was time-barred and properly dismissed. Barab v. Plumleigh, 123 Idaho 980, 853 P.2d 635 (Ct. App. 1993). Action for malicious prosecution is not governed by subd. 4 or 5 of this section. Barton v. Woodward, 32 Idaho 375, 182 P. 916 (1919).

In action commenced in 1955 to recover general and special damages for personal injuries arising out of an automobile accident occurring in 1952, it was held that a statute which tolls the running of the statute of limitations when the defendant is out of the state when the cause of action accrues or departs from the state thereafter will be given effect even though service could have been obtained on an involuntary agent, in this case the secretary of state, during his absence. Staten v. Weiss, 78 Idaho 616, 308 P.2d 1021 (1957), overruled in part, Lipe v. Javelin Tire Co., 96 Idaho 723, 536 P.2d 291 (1975).

Both the builder and the owner of a building are covered by subdivision 4 of this section which contains the statute of limitations not only for professional malpractice actions and wrongful death actions, but, also, for actions to recover damages for an injury to the person and where causes of action were all based upon an injury plaintiff sustained due to the alleged negligence of architect, builder and owner, the limitation period of subdivision 4 of this section applied to all of the defendants. Stephens v. Stearns, 106 Idaho 249, 678 P.2d 41 (1984).

Civil rights claims in this state pursuant to 42 U.S.C. § 1983 must meet the two-year statute of limitations for personal injury actions under subdivision 4 of this section. Henderson v. State, 110 Idaho 308, 715 P.2d 978, cert. denied, 477 U.S. 907, 106 S. Ct. 3282, 91 L. Ed. 2d 571 (1986).

In claims for defamation and negligent infliction of emotional distress against defendants who were former clients claiming plaintiff had given them unsuitable investment recommendations that led to the Idaho department of finance denying plaintiffs’ applications for securities licenses, because the orders denying the applications were entered more than two years before the original complaint was filed, the district court was correct in concluding the claims were time barred under subsections 4 and 5 of this section. Rincover v. State, Dep’t of Fin., 128 Idaho 653, 917 P.2d 1293 (1996).

Minor’s claim involving sexual abuse against a school district, brought pursuant to 42 U.S.C. § 1983, was subject to the two-year limitations period under subdivision 4 of this section, not§ 6-1704, the statute of limitations for filing tort actions in child abuse cases. Osborn v. Salinas, 131 Idaho 456, 958 P.2d 1142 (1998).

Where plaintiff’s amended complaint against the decedent’s estate on his claim for personal injuries was filed nearly one year after the expiration of the two-year statute of limitations, his claim was time-barred unless it related back to the date of filing of the original complaint. Damian v. Estate of Pina, 132 Idaho 447, 974 P.2d 93 (Ct. App. 1999).

The relation back doctrine can not be satisfied where plaintiff’s original complaint was not served before the two-year statute of limitation for personal injury actions expired. Noreen v. Price Dev. Co., 135 Idaho 816, 25 P.3d 129 (Ct. App. 2001).

— Negligent Design and Construction.

A personal injury action founded upon the negligent design or construction of an improvement to real property must be brought within two years of the injuries, and in no event later than eight years following the completion of construction. Barab v. Plumleigh, 123 Idaho 980, 853 P.2d 635 (Ct. App. 1993).

— Section 1983 Actions.

Where homeowner commenced her personal injury action against previous homeowner within two years of sustaining injuries from the explosion of a woodburning stove, but where the construction of the stove, including the log-lighter device, was completed more than eight years before homeowner filed her complaint, her claim seeking to find the previous homeowner liable for the negligent design and construction of the stove was time-barred and properly dismissed. Barab v. Plumleigh, 123 Idaho 980, 853 P.2d 635 (Ct. App. 1993). — Section 1983 Actions.

Because actions under 42 U.S.C. 1983 are analogous to actions for injuries to personal rights, they are subject to the state statute of limitations for personal injury actions. The pertinent Idaho statute is subdivision 4 of this section, which provides a two-year statute of limitations for actions based on personal injury. Samuel v. Michaud, 980 F. Supp. 1381 (D. Idaho 1996), aff’d, 129 F.3d 127 (9th Cir. 1997).

District court properly applied Fed. R. Civ. P. 12(c) in granting summary judgment under Fed. R. Civ. P. 56 in favor of the Idaho state board of medicine and the Idaho state board of medicine board of professional discipline in a physician assistant’s action under 42 U.S.C.S. § 1983, which claimed that a protracted administrative process motivated by religious discrimination against Mormons precluded the reinstatement of her physician assistant’s license; several of the boards’ acts occurred outside the applicable two-year statute of limitations under subdivision 4 of this section, and the remaining acts were sufficiently judicial and prosecutorial to entitle the boards to absolute immunity. Olsen v. Idaho State Bd. of Med., 363 F.3d 916 (9th Cir. 2004).

District court correctly held that a former doctoral student’s 42 U.S.C.S. § 1983 claim was barred by subsection (4)’s two-year limitations period, where it was clear that he was aware of his injury as of the date he was dismissed by the graduate school, and he had filed his action in state court roughly four and a half years after his dismissal. Jun Yu v. Idaho State Univ., 165 Idaho 313, 444 P.3d 885 (2019).

Professional Service.

Defendant, as a licensed certified public accountant, was engaged in a “professional service” when he participated in the audit of the account of Owyhee County. Owyhee County v. Rife, 100 Idaho 91, 593 P.2d 995 (1979).

This section expressly prohibits extending the statute of limitation period by reason of any continuing professional relationship between the injured party and the alleged wrongdoer. Ogle v. De Sano, 107 Idaho 872, 693 P.2d 1074 (Ct. App. 1984).

Where the corporation committed wrongful acts or omissions within the course of performing its professional services, the company’s claim was properly characterized as a professional malpractice claim; therefore, it was time-barred by the two-year statute of limitations provided by subdivision 4 of this section. Nerco Minerals Co. v. Morrison Knudsen Corp., 140 Idaho 144, 90 P.3d 894 (2004).

Tolling of Statute.

Plaintiff’s claim that she did not discover the cause of her daughter’s birth defect until approximately eight years after her daughter’s birth did not serve to toll the statute of limitations, as there is no “discovery” exception except for the leaving of foreign objects in the body. Cosgrove ex rel. Winfree v. Merrell Dow Pharmaceuticals, Inc., 117 Idaho 470, 788 P.2d 1293 (1990).

Violation of Idaho Communications Security Act.

Minor’s parents’ claims arising from an automobile accident in which the minor was injured were time-barred, because neither§ 5-230 nor this section tolled the limitations period during the minor’s minority, since the parents sought personal recovery. Taft v. Jumbo Foods, Inc., 155 Idaho 511, 314 P.3d 193 (2013). Violation of Idaho Communications Security Act.

Where employee brought an action against employer alleging violation of the Idaho communications security act (see§ 18-6701 et seq.) for secretly recording her telephone conversations, district court correctly held that no discovery exception to the statute of limitations was created by the Idaho communication security act; employee brought the action more than three years after the last day of wiretapping occurred. Knudsen v. Agee, 128 Idaho 776, 918 P.2d 1221 (1996).

Wiretapping.

Based on its determination that in the case of wiretapping the damage is immediate, the supreme court of Idaho held that the statute of limitations begins to run no later than the last day of wiretapping. Knudsen v. Agee, 128 Idaho 776, 918 P.2d 1221 (1996).

Worker’s Compensation Claims.

Claim against insurance company insuring an employer under workmen’s [now worker’s] compensation act (see§ 72-101 et seq.) was not barred because insurance company was not made a party to the proceedings before the industrial accident board against the employer. Hauter v. Coeur d’Alene Antimony Mining Co., 39 Idaho 621, 228 P. 259 (1924).

Wrongful Death Actions.

Where wrongful death actions were filed some 18 and 19 years after the decedent’s death and the plaintiff survivors had not suffered from any disability during those years preceding the filing of their complaints, their claims were clearly barred by the statute of limitations set out in this section. Brackney v. Combustion Eng’g, Inc., 674 F.2d 812 (9th Cir. 1982).

The “occurrence, act or omission” which this section defines as the accrual of a cause of action for wrongful death refers to the death of the person, caused by the wrongful acts of another, and the running of the statute of limitation on the wrongful death cause of action begins from the date of death. Chapman v. Cardiac Pacemakers, Inc., 105 Idaho 785, 673 P.2d 385 (1983).

The statute of limitations on the decedent’s own cause of action is irrelevant when ascertaining the timeliness of his heirs’ wrongful death action. As the actionable wrong for a wrongful death action is not complete until the death of the decedent, the statute of limitations does not begin running until that time. Castorena v. GE, 149 Idaho 609, 238 P.3d 209 (2010).

Wiretapping.

Based on its determination that in the case of wiretapping the damage is immediate, the supreme court of Idaho held that the statute of limitations begins to run no later than the last day of wiretapping. Knudsen v. Agee, 128 Idaho 776, 918 P.2d 1221 (1996).

Worker’s Compensation Claims.

Claim against insurance company insuring an employer under workmen’s [now worker’s] compensation act (see§ 72-101 et seq.) was not barred because insurance company was not made a party to the proceedings before the industrial accident board against the employer. Hauter v. Coeur d’Alene Antimony Mining Co., 39 Idaho 621, 228 P. 259 (1924).

Wrongful Death Actions.

Where wrongful death actions were filed some 18 and 19 years after the decedent’s death and the plaintiff survivors had not suffered from any disability during those years preceding the filing of their complaints, their claims were clearly barred by the statute of limitations set out in this section. Brackney v. Combustion Eng’g, Inc., 674 F.2d 812 (9th Cir. 1982).

The “occurrence, act or omission” which this section defines as the accrual of a cause of action for wrongful death refers to the death of the person, caused by the wrongful acts of another, and the running of the statute of limitation on the wrongful death cause of action begins from the date of death. Chapman v. Cardiac Pacemakers, Inc., 105 Idaho 785, 673 P.2d 385 (1983).

The statute of limitations on the decedent’s own cause of action is irrelevant when ascertaining the timeliness of his heirs’ wrongful death action. As the actionable wrong for a wrongful death action is not complete until the death of the decedent, the statute of limitations does not begin running until that time. Castorena v. GE, 149 Idaho 609, 238 P.3d 209 (2010).

Am. Jur. 2d.

50 Am. Jur. 2d, Libel and Slander, § 404 et seq.

51 Am. Jur. 2d, Limitation of Actions, §§ 142 to 146.

63C Am. Jur. 2d, Public Officers and Employees, §§ 485 to 489.

70 Am. Jur. 2d, Sheriffs, Police and Constables, § 115 et seq.

C.J.S.

ALR.

Insurance agents or brokers as professionals or nonprofessionals for purposes of malpractice statutes of limitations. 121 A.L.R.5th 365.

When statute of limitations begins to run on action against attorney for malpractice based upon negligence — View that statute begins to run from time of occurrence of negligent act or omission. 11 A.L.R.6th 1.

When statute of limitations begins to run on action against attorney for malpractice based upon negligence — View that statute begins to run from time of occurrence of sustaining damage or injury and other theories. 12 A.L.R.6th 1.

When statute of limitations begins to run on action against attorney for malpractice based upon negligence — View that statute begins to run from time client discovers, or should have discovered, negligent act or omission — Statement of rule and application of rule to providing client with allegedly negligent advice or failing to advise. 13 A.L.R.6th 1.

When statute of limitations begins to run on action against attorney for malpractice based upon negligence — View that statute begins to run from time client discovers, or should have discovered, negligent act or omission — Application of rule to conduct of litigation and delay or inaction in conducting client’s affairs. 14 A.L.R.6th 1.

Timeliness of action under medical malpractice statute of repose, aside from effect of fraudulent concealment of patient’s cause of action. 14 A.L.R.6th 301.

When statute of limitations begins to run on action against attorney for malpractice based upon negligence — View that statute begins to run from time client discovers, or should have discovered, negligent act or omission — Application of rule to property, estate, corporate, and document cases. 15 A.L.R.6th 427.

When statute of limitations begins to run on action against attorney for malpractice based upon negligence — View that statute begins to run from time client discovers, or should have discovered, negligent act or omission — Application of rule to negligent misrepresentation, failure to supervise junior counsel, conflict of interest, billing disputes, and unspecified acts of negligence. 16 A.L.R.6th 653. When statute of limitations begins to run in case of dental malpractice. 17 A.L.R.6th 159.

Effect of fraudulent or negligent concealment of patient’s cause of action on timeliness of action under medical malpractice statute of repose. 19 A.L.R.6th 475.

Application of Relation-Back Doctrine Permitting Change in Party After Statute of Limitations Has Run in State Court Action — Medical Malpractice Cases in Actions Involving Hospitals, Clinics, and the Like. 100 A.L.R.6th 139.

C.J.S.

§ 5-221. Actions on claims against county.

Actions on claims against a county which have been rejected by the board of commissioners must be commenced within six (6) months after the first rejection thereof by such board.

History.

C.C.P. 1881, § 161; R.S., R.C., & C.L., § 4057; C.S., § 6614; I.C.A.,§ 5-221.

Wrongful Death Action.

Where wrongful death action against the county was grounded in tort, the more specific statute of limitations, the two-year bar of§ 6-911 controlled rather than the six-month bar of this section. Walker v. Shoshone County, 112 Idaho 991, 739 P.2d 290 (1987).

Am. Jur. 2d.

C.J.S.

Application of Section.

This section has no application to fees charged by the county for recording of instruments. Lincoln County v. Twin Falls N. Side Land & Water Co., 23 Idaho 433, 130 P. 788 (1913).

Action on account for services of a farm laborer was an action to recover a balance due on a mutual, open and current account. McCarthy v. Paris, 46 Idaho 165, 267 P. 232 (1928).

Last Item Proved.

History and precedent suggest that the appropriate definition of the term “item” is the final underlying transaction, and this interpretation conforms with the admission rationale which gave rise to the statutory language and is in harmony with case law. Eagle Water Co. v. Roundy Pole Fence Co., 134 Idaho 626, 7 P.3d 1103 (2000).

Mandamus Action to Compel Reassessment.

Where a mandamus to compel reassessment of property within a special or local improvement district was brought some eighteen months after actual notice of the deficiency through the city clerk’s fault, the action was not barred by limitation. Maguire v. Whillock, 63 Idaho 630, 124 P.2d 248 (1942).

C.J.S.

§ 5-223. Actions to recover deposits — Commencement of limitation.

To actions brought to recover money or property deposited with any bank, banker, trust company or saving and loan society, no limitation begins to run until after an authorized demand.

History.

C.C.P. 1881, § 163; R.S., R.C., & C.L., § 4059; C.S., § 6616; I.C.A.,§ 5-223.

Applied by Federal Courts.

The federal courts may give force and effect to this statute when the proceedings therein are governed by the laws of Idaho. Jones v. Jenkins, 22 F.2d 642 (8th Cir. 1927).

Commencement of Running by Statute.

Statute does not begin to run until after demand by depositor. Bates v. Capital State Bank, 18 Idaho 429, 110 P. 277 (1910).

Special Deposits.

Where action is brought to recover money deposited with bank, statute does not begin to run until after demand by depositor, even though deposit is special. Prewett v. First Nat’l Bank, 45 Idaho 451, 262 P. 1057 (1928).

C.J.S.

54 C.J.S., Limitations of Actions, § 239 et seq.

Abuse of Process.

The four-year statute of limitations contained in this section applies to abuse of process claims, instead of the two-year statute of limitations under§ 5-219. Gowin v. Altmiller, 663 F.2d 820 (9th Cir. 1981). But see Idaho State Bar v. Tway, 128 Idaho 794, 919 P.2d 323 (1996). «Title 5»«Ch. 2»«§ 5-224»

Abuse of Process.

Actions upon Foreign Judgment.

The four-year statute of limitations contained in this section applies to abuse of process claims, instead of the two-year statute of limitations under§ 5-219. Gowin v. Altmiller, 663 F.2d 820 (9th Cir. 1981). But see Idaho State Bar v. Tway, 128 Idaho 794, 919 P.2d 323 (1996). Actions upon Foreign Judgment.

An action on a Canadian judgment, which was not specifically provided for by any other section of the statute of limitations provisions, fell within the purview of this section; in order to successfully assert the statute of limitations as a bar to this action defendant must show he had resided in Idaho for more than four years. Attorney Gen. ex rel. Her Majesty the Queen in Right of Can. v. Tysowski, 118 Idaho 737, 800 P.2d 133 (Ct. App. 1990).

Amendment of Complaint.

If the amendment introduces a new or different cause of action and makes a new or different demand, the statute continues to run until the amendment is filed. Denton v. Detweiler, 48 Idaho 369, 282 P. 82 (1929).

Annulment of Ordinance.

An action to have ordinances vacating streets and alleys of a city declared null and void, and to compel the removal of obstructions from the streets, should have been commenced within at least five years from the time the cause of action arose and is barred where the ordinances were passed in 1900, and the action was not commenced until 1909. Canady v. Coeur d’Alene Lumber Co., 21 Idaho 77, 120 P. 830 (1911).

Appointment of Administrator.

A proceeding for the appointment of an administrator is an action within the meaning of this section and it is barred if not commenced within four years from the death of the decedent. Gwinn v. Melvin, 9 Idaho 202, 72 P. 961 (1903).

Bank Deposits, Recovery of.

In action to recover money deposited in bank and applied to note of depositor, four-year statute applies and time begins to run from demand by depositor. Prewett v. First Nat’l Bank, 45 Idaho 451, 262 P. 1057 (1928).

Breach in Tort.

Four-year statute of limitations applied to the buyers’ cause of action against the real estate company and realtor where, although the duties owed to the buyers were clearly statutory, the buyers had to deal with the breaches in tort, not contract. Sumpter v. Holland Realty, Inc., 140 Idaho 349, 93 P.3d 680 (2004).

Breach of Trust.

The general rule is that length of time is no bar to a trust, clearly established, and that express trusts are not within the statute of limitations; but that rule is subject to the qualification that time begins to run against a trust as soon as it is openly disavowed by the trustee, which disavowal or repudiation is clearly and unequivocally made known to the cestui que trust. Olympia Mining & Milling Co. v. Kerns, 24 Idaho 481, 135 P. 255 (1913), appeal dismissed, 236 U.S. 211, 35 S. Ct. 415, 59 L. Ed. 542 (1915).

The period of limitation against a continuing, express or voluntary, trust is four years, dating from notice to the cestui que trust of its termination. Brasch v. Brasch, 55 Idaho 777, 47 P.2d 676 (1935). Action against officer for breach of trust accrues on discovery of breach. Cruzen v. Boise City, 58 Idaho 406, 74 P.2d 1037 (1937).

Action against vendor for breach of implied trust accrues on date of notice of repudiation and sale of property to another. Shepherd v. Dougan, 58 Idaho 543, 76 P.2d 442 (1937).

Counterclaim by corporation to recover damages from officer of corporation for breach of trust is not controlled by 3 year statute set forth in§ 5-218 but is governed by four year statutes set forth in§ 5-217 and this section. Melgard v. Moscow Idaho Seed Co., 73 Idaho 265, 251 P.2d 546 (1952).

Action for breach of voting trust arising from the dilution of the beneficiary’s ownership interest in the bank as a result of the employee stock option plan accrued when the dilution occurred; therefore, where the dilution occurred six years before the action was filed, the claim was barred under both this section and§ 15-7-307. First Bank & Trust v. Jones, 111 Idaho 481, 725 P.2d 186 (Ct. App. 1986).

Constructive Trust.

Any claim by the beneficiary of decedent’s life insurance policy for constructive trust accrued at the time the insurance policy proceeds were distributed, and, where the claim was not filed until five years later, the claim was barred by the four year limitation contained in either§ 5-217 or this section. Witt v. Jones, 111 Idaho 165, 722 P.2d 474 (1986).

Counterclaims.

Where both complaint and defendant’s counterclaim were based on a logging contract, defendant’s cross demands could be pleaded defensively; therefore, the striking of defendant’s counterclaims was erroneous, as they were not barred under this section or§ 5-217. Kelson v. Ahlborn, 87 Idaho 519, 393 P.2d 578 (1964).

Damage to Environment.

Where the defendants argued that it was undisputed that there had been no injury to the environment for four years prior to the date of the filing of the complaint but the state submitted affidavits and documents which suggested that damage to the environment continued, even though there had been an overall improvement in the environmental outlook for the area, summary judgment was inappropriate. Idaho v. Bunker Hill Co., 635 F. Supp. 665 (D. Idaho 1986).

Damages.

Where water heater was installed without pressure release valve and exploded 18 years later, cause of action for damages caused by explosion occurred at the time of the explosion, notwithstanding that plaintiff knew, at the time of installation, of the failure to install the valve, and action brought within one year from explosion was not barred. Galbraith v. Vangas, Inc., 103 Idaho 912, 655 P.2d 119 (Ct. App. 1982).

This section applies to an action for damages to fixtures or to real property. Hibbler v. Fisher, 109 Idaho 1007, 712 P.2d 708 (Ct. App. 1985).

Where plaintiffs in an action alleging negligence in the installation of a water system did not discover latent defects before the end of the six-year accrual period allowed by§ 5-241, they had four more years under this section in which to file the negligence action. Since the action was commenced within the ten-year period, the negligence count was not barred by the applicable statute of limitation. Hibbler v. Fisher, 109 Idaho 1007, 712 P.2d 708 (Ct. App. 1985). Action against officer for breach of trust accrues on discovery of breach. Cruzen v. Boise City, 58 Idaho 406, 74 P.2d 1037 (1937).

Action against vendor for breach of implied trust accrues on date of notice of repudiation and sale of property to another. Shepherd v. Dougan, 58 Idaho 543, 76 P.2d 442 (1937).

Counterclaim by corporation to recover damages from officer of corporation for breach of trust is not controlled by 3 year statute set forth in§ 5-218 but is governed by four year statutes set forth in§ 5-217 and this section. Melgard v. Moscow Idaho Seed Co., 73 Idaho 265, 251 P.2d 546 (1952).

Action for breach of voting trust arising from the dilution of the beneficiary’s ownership interest in the bank as a result of the employee stock option plan accrued when the dilution occurred; therefore, where the dilution occurred six years before the action was filed, the claim was barred under both this section and§ 15-7-307. First Bank & Trust v. Jones, 111 Idaho 481, 725 P.2d 186 (Ct. App. 1986).

Constructive Trust.

Any claim by the beneficiary of decedent’s life insurance policy for constructive trust accrued at the time the insurance policy proceeds were distributed, and, where the claim was not filed until five years later, the claim was barred by the four year limitation contained in either§ 5-217 or this section. Witt v. Jones, 111 Idaho 165, 722 P.2d 474 (1986).

Counterclaims.

Where both complaint and defendant’s counterclaim were based on a logging contract, defendant’s cross demands could be pleaded defensively; therefore, the striking of defendant’s counterclaims was erroneous, as they were not barred under this section or§ 5-217. Kelson v. Ahlborn, 87 Idaho 519, 393 P.2d 578 (1964).

Damage to Environment.

Where the defendants argued that it was undisputed that there had been no injury to the environment for four years prior to the date of the filing of the complaint but the state submitted affidavits and documents which suggested that damage to the environment continued, even though there had been an overall improvement in the environmental outlook for the area, summary judgment was inappropriate. Idaho v. Bunker Hill Co., 635 F. Supp. 665 (D. Idaho 1986).

Damages.

Where water heater was installed without pressure release valve and exploded 18 years later, cause of action for damages caused by explosion occurred at the time of the explosion, notwithstanding that plaintiff knew, at the time of installation, of the failure to install the valve, and action brought within one year from explosion was not barred. Galbraith v. Vangas, Inc., 103 Idaho 912, 655 P.2d 119 (Ct. App. 1982).

This section applies to an action for damages to fixtures or to real property. Hibbler v. Fisher, 109 Idaho 1007, 712 P.2d 708 (Ct. App. 1985).

Distribution of Estate.

Where plaintiffs in an action alleging negligence in the installation of a water system did not discover latent defects before the end of the six-year accrual period allowed by§ 5-241, they had four more years under this section in which to file the negligence action. Since the action was commenced within the ten-year period, the negligence count was not barred by the applicable statute of limitation. Hibbler v. Fisher, 109 Idaho 1007, 712 P.2d 708 (Ct. App. 1985). Distribution of Estate.

In the matter of a petition of heirs at law of two French legatees of an Idaho testator, who died intestate during the pendency of the administration of the testator’s estate, for distribution to them as such heirs at law, this section did not begin to run so long as the executor had not taken a position hostile to that of the petitioners. Barthel v. Johnston, 92 Idaho 94, 437 P.2d 366 (1968).

Enforcement of Public Right.

Where the actions of the department of transportation were consistent with the exercise of its police powers, as authorized by the legislature, their actions were not barred by the statute of limitations, because statutes of limitations do not operate against the state when the state is acting in its sovereign capacity to enforce a public right. Young Elec. Sign Co. v. State ex rel. Winder, 135 Idaho 804, 25 P.3d 117 (2001).

Environmental Protection and Health.

Since Idaho’s Environmental Protection and Health Act (§ 39-101 et seq.) does not provide its own statute of limitation, the four-year limitation provided by this section applies to actions brought under it. Aetna Cas. & Sur. Co. v. Gulf Resources & Chem. Corp., 600 F. Supp. 797 (D. Idaho 1985).

Fiduciary Duty.

Where a claim for breach of fiduciary duty was not covered by any of the other specific statutes of limitations, the court applied the four-year statute of limitations contained in this section. Jones v. Kootenai County Title Ins. Co., 125 Idaho 607, 873 P.2d 861 (1994).

Funds in Court.

Where proceeds of the sale of property were deposited in a court pursuant to a stipulation entered into by the parties under the terms of which it was to be turned over to the one ultimately entitled thereto, the claim of the assignee, of one of the defendants to that portion of the proceeds attached by the plaintiff as property of such defendant, although presented by the proceeding in intervention, more than four years after the attachment but prior to the trial of the case, was not barred by limitation since it was filed before the trial and was, therefore, timely. Anderson v. Ferguson, 56 Idaho 554, 57 P.2d 325 (1936).

Inverse Condemnation.

The plaintiff’s claim in inverse condemnation accrued when the court issued an injunction against the plaintiff’s continued construction of its apartment complex, and the plaintiff’s cause of action was untimely where it was filed more than four years after the issuance of the injunction. Intermountain W., Inc. v. Boise City, 111 Idaho 878, 728 P.2d 767 (1986).

Because landowner, suing department of transportation for inverse condemnation based on gravel excavation conducted upstream of his property, was aware of some effect the excavation had on his property at least as early as 1976 when he filed a claim under the Idaho tort claims act (see§ 6-901 et seq.), the limitations period set forth in this section had run before he filed his claim for inverse condemnation in 1990; summary judgment in favor of department was affirmed. Higginson v. Wadsworth, 128 Idaho 439, 915 P.2d 1 (1996). Project completion rule was the proper standard for determining when a claim for inverse condemnation accrued for purposes of the statute of limitations; therefore, the corporation’s complaint for inverse condemnation was timely filed because the highway district did not substantially complete construction of the road until May 1993. C & G, Inc. v. Canyon Highway Dist. No. 4, 139 Idaho 140, 75 P.3d 194 (2003).

Section 40-202 was not unconstitutional on its face; if a landowner believed the acquisition of a roadway pursuant to§ 40-202 resulted in a taking, the landowner had four years, pursuant to this section, from the accrual of the cause of action to bring a claim of inverse condemnation. Ada County Highway Dist. v. Total Success Invs., LLC, 145 Idaho 360, 179 P.3d 323 (2008).

Where the state claimed incorrectly that it owned mineral rights to property owned by the plaintiffs, and the plaintiffs entered into a lease with the state to allow the owners to mine gravel and sand for sale on a royalty basis, the time limitation for a claim of inverse condemnation began to run at the time the lease was signed. Harris v. State Ex Rel. Kempthorne, 147 Idaho 401, 210 P.3d 86 (2009).

Malpractice.

Legal malpractice cause of action brought by decedent’s sons in 1974 in regard to probate of father’s estate in 1954 accrued in 1954 at the time of the alleged negligence, rather than in 1972 when the alleged negligence was discovered; thus, whether the limitation in this section or§ 5-217 was applicable, the action was barred, having been brought more than four years after its occurrence. Martin v. Clements, 98 Idaho 906, 575 P.2d 885 (1978).

Mandamus Action to Compel Reassessment.

Where a mandamus to compel reassessment of property within a special or local improvement district was brought some eighteen months after actual notice of the deficiency through the city clerk’s fault, the action was not barred by limitation. Maguire v. Whillock, 63 Idaho 630, 124 P.2d 248 (1942).

Negligence.

Debtor’s suit for negligence, against bank issuing credit card, based on the erroneous reporting of credit information, was not barred by the statute of limitations because the first negligent act committed by bank occurred when bank received payment in full from the debtors, credited the check against the outstanding balance, and continued to characterize the account as “charged off,” and this occurred within four years. Hoglan v. First Sec. Bank, 120 Idaho 682, 819 P.2d 100 (1991).

A property owner’s 2011 negligence claim against a well-drilling company was barred by the four-year limitations period; there was no evidence that an act of negligence caused damage until the well caved in, which occurred in 2010. Stapleton v. Jack Cushman Drilling, 153 Idaho 735, 291 P.3d 418 (2012).

Nuisance.

Where a complaint of nuisance is permanent, the cause of action must be commenced within four years from the date the permanent nuisance was created or occurred; where the nuisance is temporary and continuing in nature, the statute of limitations does not run and an action may be brought at any time to recover damages occurring within the previous limitation period. Aetna Cas. & Sur. Co. v. Gulf Resources & Chem. Corp., 600 F. Supp. 797 (D. Idaho 1985). Project completion rule was the proper standard for determining when a claim for inverse condemnation accrued for purposes of the statute of limitations; therefore, the corporation’s complaint for inverse condemnation was timely filed because the highway district did not substantially complete construction of the road until May 1993. C & G, Inc. v. Canyon Highway Dist. No. 4, 139 Idaho 140, 75 P.3d 194 (2003).

Section 40-202 was not unconstitutional on its face; if a landowner believed the acquisition of a roadway pursuant to§ 40-202 resulted in a taking, the landowner had four years, pursuant to this section, from the accrual of the cause of action to bring a claim of inverse condemnation. Ada County Highway Dist. v. Total Success Invs., LLC, 145 Idaho 360, 179 P.3d 323 (2008).

Where the state claimed incorrectly that it owned mineral rights to property owned by the plaintiffs, and the plaintiffs entered into a lease with the state to allow the owners to mine gravel and sand for sale on a royalty basis, the time limitation for a claim of inverse condemnation began to run at the time the lease was signed. Harris v. State Ex Rel. Kempthorne, 147 Idaho 401, 210 P.3d 86 (2009).

Malpractice.

Legal malpractice cause of action brought by decedent’s sons in 1974 in regard to probate of father’s estate in 1954 accrued in 1954 at the time of the alleged negligence, rather than in 1972 when the alleged negligence was discovered; thus, whether the limitation in this section or§ 5-217 was applicable, the action was barred, having been brought more than four years after its occurrence. Martin v. Clements, 98 Idaho 906, 575 P.2d 885 (1978).

Mandamus Action to Compel Reassessment.

Where a mandamus to compel reassessment of property within a special or local improvement district was brought some eighteen months after actual notice of the deficiency through the city clerk’s fault, the action was not barred by limitation. Maguire v. Whillock, 63 Idaho 630, 124 P.2d 248 (1942).

Negligence.

Debtor’s suit for negligence, against bank issuing credit card, based on the erroneous reporting of credit information, was not barred by the statute of limitations because the first negligent act committed by bank occurred when bank received payment in full from the debtors, credited the check against the outstanding balance, and continued to characterize the account as “charged off,” and this occurred within four years. Hoglan v. First Sec. Bank, 120 Idaho 682, 819 P.2d 100 (1991).

A property owner’s 2011 negligence claim against a well-drilling company was barred by the four-year limitations period; there was no evidence that an act of negligence caused damage until the well caved in, which occurred in 2010. Stapleton v. Jack Cushman Drilling, 153 Idaho 735, 291 P.3d 418 (2012).

Nuisance.

Where a complaint of nuisance is permanent, the cause of action must be commenced within four years from the date the permanent nuisance was created or occurred; where the nuisance is temporary and continuing in nature, the statute of limitations does not run and an action may be brought at any time to recover damages occurring within the previous limitation period. Aetna Cas. & Sur. Co. v. Gulf Resources & Chem. Corp., 600 F. Supp. 797 (D. Idaho 1985). Where a nuisance is permanent, the cause of action must be commenced within four years from the date the permanent nuisance was created or occurred; where the nuisance is temporary and continuing in nature, the statute of limitations does not run and an action may be brought at any time to recover damages occurring within the previous limitation period. Idaho v. Hanna Mining Co., 699 F. Supp. 827 (D. Idaho 1987), aff’d, 882 F.2d 392 (9th Cir. 1989).

Action for damages to mining ground from oil and grease deposited in stream was governed by this section. Idaho Gold Dredging Corp. v. Boise Payette Lumber Co., 52 Idaho 766, 22 P.2d 147 (1933).

Periodic Floodings.

In cases of repeated or periodic floodings, each constitutes a separate and distinct cause of action, and the statute begins to run from the date of each periodic flooding. Lavin v. Panhandle Lumber Co., 51 Idaho 1, 1 P.2d 186 (1931).

Public Duties and Rights.

Where the duty to be performed or the right to be enforced is of a strictly public nature, they are not subject to the law of limitations. Elmore County v. Alturas County, 4 Idaho 145, 37 P. 349 (1894).

Public Officers.

An action by a county to recover from the clerk of court, auditor and recorder moneys illegally allowed by the county commissioners to the clerk, etc., and fees illegally collected by the clerk, etc., from the county is barred after four years. Bannock County v. Bell, 8 Idaho 1, 65 P. 710 (1901).

An action against officer for breach of trust accrues on discovery of breach. Cruzen v. Boise City, 58 Idaho 406, 74 P.2d 1037 (1937).

An inmate’s claims against a court reporter for fraud and negligence and tortious interference with rights of citizenship were time barred by§§ 5-218, 5-219, and this section where the claims were filed more than four years after time inmate’s attorney, through due diligence, could have discovered alleged omissions in trial transcript. Mason v. Tucker & Assocs., 125 Idaho 429, 871 P.2d 846 (Ct. App. 1994).

Real Property, Damages.

Actions for damages against real property come under this section. Boise Dev. Co. v. Boise City, 30 Idaho 675, 167 P. 1032 (1917).

Action to recover damages for injury to pasture and growing crops due to obstruction of watercourse was an action on the case for consequential damages to real property, and statute of limitations was not the three year statute for actions of trespass upon real property as set out in§ 5-218, but the four year statute set forth in this section. Woodland v. Lyon, 78 Idaho 79, 298 P.2d 380 (1956).

Regulatory Takings.

Plaintiff could recover damages for injury to real property as the result of obstruction of watercourse for period of four years prior to filing of suit though obstruction occurred more than four years prior to institution of suit, since the tort involved was a continuing wrong. Woodland v. Lyon, 78 Idaho 79, 298 P.2d 380 (1956). Regulatory Takings.

Regulatory takings claim was not time barred because the claims did not accrue upon the enactment of the regulations. One party was not aware of the claim until a 1997 decision, and a city brought an action to require the removal of fences from property later acquired by that party in 1997. City of Coeur d’Alene v. Simpson, 142 Idaho 839, 136 P.3d 310 (2006).

Revival of Judgment.

Action to revive a judgment after failure of title on execution sale was governed by four-year statute. Gertztowt v. Humphrey, 53 Idaho 631, 27 P.2d 64 (1933).

In mechanic’s lien foreclosure, where two judgment claimants assigned their judgments to another judgment claimant and heirs of deceased owner assigned their interest to same assignee so as to cause a merger of the liens with the title, an unassigned recorded judgment of another claimant is a cloud on the title which must be removed to render same marketable. Brown v. Hawkins, 66 Idaho 351, 158 P.2d 840 (1945), overruled on other grounds, Mitchell v. Flandro, 95 Idaho 228, 506 P.2d 455 (1972).

Standing.

Under this section, the plaintiffs had no standing to bring an action; the public use and maintenance of the road from 1979 onward was not disputed, so the four-year time period to bring an action ended before the current plaintiffs acquired the property. Halvorson v. N. Latah County Highway Dist., 151 Idaho 196, 254 P.3d 497, cert. denied, 565 U.S. 826, 132 S. Ct. 118, 181 L. Ed. 2d 42 (2011).

Suit by State.

The state in bringing suit may not avoid the statute of limitations imposed by this section and§ 5-225, absent a showing that the application of a statute of limitations to the state would result in an unconstitutional outcome, or absent a statute immunizing the state from the statute of limitations. Aetna Cas. & Sur. Co. v. Gulf Resources & Chem. Corp., 600 F. Supp. 797 (D. Idaho 1985).

Unlicensed Professional Service.

In June 1971, the defendants were not “certified public accountants,” and at that time they clearly were not engaged in professional services for which they were licensed; therefore, the alleged acts of malpractice of the defendants cannot be denominated as of June, 1971 to be “professional malpractice”; hence, the two-year limitation period is inapplicable to the causes of action against them and the applicable statute of limitations would be the four year periods of either§ 5-217 or this section. Owyhee County v. Rife, 100 Idaho 91, 593 P.2d 995 (1979).

Revival of Judgment.

Action to revive a judgment after failure of title on execution sale was governed by four-year statute. Gertztowt v. Humphrey, 53 Idaho 631, 27 P.2d 64 (1933).

In mechanic’s lien foreclosure, where two judgment claimants assigned their judgments to another judgment claimant and heirs of deceased owner assigned their interest to same assignee so as to cause a merger of the liens with the title, an unassigned recorded judgment of another claimant is a cloud on the title which must be removed to render same marketable. Brown v. Hawkins, 66 Idaho 351, 158 P.2d 840 (1945), overruled on other grounds, Mitchell v. Flandro, 95 Idaho 228, 506 P.2d 455 (1972).

Standing.

Under this section, the plaintiffs had no standing to bring an action; the public use and maintenance of the road from 1979 onward was not disputed, so the four-year time period to bring an action ended before the current plaintiffs acquired the property. Halvorson v. N. Latah County Highway Dist., 151 Idaho 196, 254 P.3d 497, cert. denied, 565 U.S. 826, 132 S. Ct. 118, 181 L. Ed. 2d 42 (2011).

Suit by State.

The state in bringing suit may not avoid the statute of limitations imposed by this section and§ 5-225, absent a showing that the application of a statute of limitations to the state would result in an unconstitutional outcome, or absent a statute immunizing the state from the statute of limitations. Aetna Cas. & Sur. Co. v. Gulf Resources & Chem. Corp., 600 F. Supp. 797 (D. Idaho 1985).

Unlicensed Professional Service.

In June 1971, the defendants were not “certified public accountants,” and at that time they clearly were not engaged in professional services for which they were licensed; therefore, the alleged acts of malpractice of the defendants cannot be denominated as of June, 1971 to be “professional malpractice”; hence, the two-year limitation period is inapplicable to the causes of action against them and the applicable statute of limitations would be the four year periods of either§ 5-217 or this section. Owyhee County v. Rife, 100 Idaho 91, 593 P.2d 995 (1979).

ALR.

When statute of limitations begins run against action to recover money paid by mistake. 79 A.L.R.3d 754.

Application of Relation Back Doctrine Permitting Change in Party After Statute of Limitations Has Run in State Court Action — Motor Vehicle Accident or Injury Cases: Individual Drivers, Parents, Owners or Lessors, and Passengers. 97 A.L.R.6th 375.

Application of Relation-Back Doctrine Permitting Change in Party After Statute of Limitations Has Run in State Court Action — Motor Vehicle Accident or Injury Cases: Corporations, Municipalities, Insurers, and Employers. 98 A.L.R.6th 93.

Application of Relation-Back Doctrine Permitting Change in Party After Statute of Limitations Has Run in State Court Action — Motor Vehicle Accident or Injury Cases: Estates, and Other or Unspecified Parties. 99 A.L.R.6th 1.

Accrual of Claims for Continuing Trespass or Continuing Nuisance for Purposes of Statutory Limitations. 14 A.L.R.7th 8.

Cross References.

Action on written contracts, limitation not applicable to state,§ 5-216.

Application in General.

This section is specifically restricted to the limitations “prescribed in this chapter,” that is, of actions of a private nature and against private individuals; it does not apply to an action to enforce a public duty, such as an action on behalf of a county to compel the commissioners of another county to appoint an accountant for the apportionment of the indebtedness of the counties as prescribed by a county division act. Elmore County v. Alturas County, 4 Idaho 145, 37 P. 349 (1894).

Where one holds a claim against the state, and does not make application to the supreme court for a recommendatory decision, under the provisions ofIdaho Const., Art. V, § 10, for 9 or 10 years after the claim becomes due, the supreme court is not authorized to hear the claim and recommend the payment thereof to the legislature and said claim is barred by the statute of limitations. Small v. State, 10 Idaho 1, 76 P. 765 (1904).

This section is intended to provide a limitation for every kind of action that may be brought in courts of state. Blaine County v. Butte County, 45 Idaho 193, 261 P. 338 (1927).

Counties.

The statute runs against the county in a civil action brought by it against the clerk, auditor and recorder for illegal fees and compensation collected by him from the county during his term of office. Bannock County v. Bell, 8 Idaho 1, 65 P. 710 (1901).

This section is applicable to counties of state. Blaine County v. Butte County, 45 Idaho 193, 261 P. 338 (1927). Limitation prescribed by§ 5-218 applies to actions brought by counties. Lemhi County ex rel. Gilbreath v. Boise Livestock Loan Co., 47 Idaho 712, 278 P. 214 (1929).

Public School Endowment Funds.

Statute of limitations cannot run against the state so as to bar a suit to foreclose a mortgage securing public school endowment funds as the funds are trust funds of the highest order protected by state and federal laws and constitutional provisions. United States v. Nashville, C. & S.L. Ry., 118 U.S. 120, 6 S. Ct. 1006, 30 L. Ed. 81 (1886); State v. Peterson, 61 Idaho 50, 97 P.2d 603 (1939).

State.

The statute of limitations applies to the state as well as to private individuals. Small v. State, 10 Idaho 1, 76 P. 765 (1904); State ex rel. Gallet v. Naylor, 50 Idaho 113, 294 P. 333 (1930).

The state in bringing suit may not avoid the statute of limitations imposed by§ 5-224 and this section, absent a showing that the application of a statute of limitations to the state would result in an unconstitutional outcome or absent a statute immunizing the state from the statute of limitations. Aetna Cas. & Sur. Co. v. Gulf Resources & Chem. Corp., 600 F. Supp. 797 (D. Idaho 1985).

Transfer of Tax against Property.

The state’s cross-complaint, to enforce transfer of tax against property, filed in a quiet title action more than thirteen (13) years after the death of the deceased, was barred by limitations under a statute then existing, since the statute limiting the time of the collecting of transfer of tax commenced to run on the death of the deceased. Hagan v. Young, 64 Idaho 318, 132 P.2d 140 (1927).

Unemployment Benefits.

The three-year period of limitations prescribed in§ 5-218 is applicable to an action brought by or for the benefit of the state to recover unemployment benefits fraudulently obtained. Norton v. Department of Emp., 94 Idaho 924, 500 P.2d 825 (1972).

Am. Jur. 2d.

C.J.S.

81A C.J.S., States, § 568.

Application in General.

Statutes of limitations apply both to equity and law cases and to the most meritorious claims. Steinour v. Oakley State Bank, 49 Idaho 293, 287 P. 949 (1930).

Am. Jur. 2d.

55 Am. Jur. 2d, Mortgages, § 1132 et seq.

C.J.S.

§ 5-227. Partial redemption.

If there is more than one such mortgagor, or more than one person claiming under a mortgagor, some of whom are not entitled to maintain such an action under the provisions of this title, any one of them who is entitled to maintain such an action may redeem therein a divided or undivided part of the mortgaged premises, according as his interest may appear, and have an accounting for a part of the rents and profits proportionate to his interest in the mortgaged premises, on payment of a part of the mortgage money, bearing the same proportion to the whole of such money as the value of his divided or undivided interest in the premises bears to the whole of such premises.

History.

C.C.P. 1881, § 167; R.S., R.C., & C.L., § 4063; C.S., § 6620; I.C.A.,§ 5-227.

Compiler’s Notes.

The words “this title” were used in the Compiled Statutes and, as there used, include chapter 2 of this title.

Am. Jur. 2d.

C.J.S.

ALR.

§ 5-228. Action, when commenced.

An action is commenced within the meaning of the chapter when the complaint is filed.

History.

C.C.P. 1881, § 168; R.S., R.C., & C.L., § 4068; C.S., § 6621; I.C.A.,§ 5-228.

Cross References.

Pleading statute of limitations, Idaho R. Civ. P. 9(h).

Injunction.

Order granting a writ of injunction does not take effect until the filing of the complaint and the required undertaking. Elmore County Irrigation Farms Ass’n v. Stockslager, 22 Idaho 420, 126 P. 616 (1912).

Parties Brought in After Limit.

Statute ceases to run upon filing an original complaint even as to parties later brought into suit after the time limited in the statute. Idaho Trust & Sav. Bank v. Nampa & Meridian Irrigation Dist., 29 Idaho 658, 161 P. 872 (1916).

Taxes and penalties under Unemployment Compensation Law (see§ 73-1301 et seq.) constitute a “statutory liability” within a three-year limitation, such “statutory liability” being one that depends for its existence on enactment of a statute rather than contract of parties. State v. Ada County Dairymen’s Ass’n, 66 Idaho 317, 159 P.2d 219 (1945).

When Action Commences.

In the context of amended complaints that seek to add new parties to an existing cause of action, it is the filing of the amended complaint itself that commences proceedings against the new parties, not the filing of the motion to amend. English v. Taylor, 160 Idaho 737, 378 P.3d 1036 (2016).

Am. Jur. 2d.

61A Am. Jur. 2d, Pleading, § 221 et seq.

C.J.S.

§ 5-228A. Time limitation — Closure of the office of the clerk — Extension of time.

Whenever, pursuant to an Idaho statute, the final day to commence an action or file a document with a court falls on a day that the office of the clerk of the district court is usually open for the transaction of business with the public, but whose office has been closed for all or part of the day by the administrative judge or his designee due to severe weather conditions or a real or threatened emergency, the time for performing the act shall be extended to the end of business hours of the first full day the office of the clerk is reopened for the transaction of business with the public.

History.

I.C.,§ 5-228A, as added by 2004, ch. 321, § 1, p. 904.

Absence of Debtor from State.

Absence of debtor from state tolls statute for period of such absence. Simonton v. Simonton, 33 Idaho 255, 193 P. 386 (1920).

Since the decision in Lipe v. Javelin Tire Co. , 96 Idaho 723, 536 P.2d 291 (1975) (see notes following heading “Foreign Corporation”) did not apply retroactively, the statute of limitations on an action on a promissory note was tolled when the defendants left the state in 1968 regardless of whether the defendants had been susceptible to service of process under the “long-arm” statute. Jones v. Watson, 98 Idaho 606, 570 P.2d 284 (1977).

Absence of Father from State.

A father was not absent from the state within the meaning of this section, where the mother at all times knew the father’s address and telephone number in Canada, the father was subject to the jurisdiction of the Idaho courts by virtue of a long arm statute, and the mother had been able to serve process on the father in the instant case. Stonecipher v. Stonecipher, 131 Idaho 731, 963 P.2d 1168 (1998).

Absence of Husband from State.

Absence of husband from the state tolled statute of limitations as to support order in divorce decree. Despain v. Despain, 78 Idaho 185, 300 P.2d 500 (1956).

Aggregating Successive Absences.

Where departure from state, after accrual of cause of action, is within exception providing that such absences shall not be computed, every absence sufficient to suspend running of limitations must be counted and successive absences will be aggregated. Roberts v. Hudson, 49 Idaho 132, 286 P. 364 (1930).

Construction with Other Law.

Sections 5-514 and 49-2421 do not impliedly repeal this section. Tetzlaff v. Brooks, 130 Idaho 903, 950 P.2d 1242 (1997).

Foreign Corporation.

Trial court erred in granting summary judgment to foreign defendant on grounds that the statute of limitations had run and had not been tolled under this section, since plaintiff should have been given the opportunity to show that reasonably diligent efforts had been made to serve the defendant without success, so that the statute of limitations had been tolled. Lipe v. Javelin Tire Co., 96 Idaho 723, 536 P.2d 291 (1975).

Where plaintiff had known out-of-state address of foreign corporation defendant who had withdrawn from doing business in Idaho from shortly after injury and had known enough to mail his claim letter to that address and defendant foreign corporation had been in business at that address since 1968 and plaintiff had in his possession business forms with the address, action filed some two years and eleven days after the injury was barred by the statute of limitations. Lipe v. Javelin Tire Co., 97 Idaho 805, 554 P.2d 1302 (1976).

Grantor of Mortgaged Property.

One who sells or reencumbers mortgaged premises can not by absenting himself from the state continue in force, beyond what would otherwise be period of limitations, lien of first mortgage to detriment of his subsequent grantee or mortgagee. Dighton v. First Exch. Nat’l Bank, 33 Idaho 273, 192 P. 832 (1920).

Grantee of mortgagor, although not obligated to pay debt, who has acquired interest in premises before right to foreclosure is barred, can not plead statute of limitations in foreclosure suit if debtor has suspended period with respect to debt by his continued absence from state. Dighton v. First Exch. Nat’l Bank, 33 Idaho 273, 192 P. 832 (1920).

Whatever prevents running of statute of limitations as to debt will also prevent its running as to lien of mortgage. Dighton v. First Exch. Nat’l Bank, 33 Idaho 273, 192 P. 832 (1920).

Long-arm Statute.

Where jurisdiction of a defendant may be had under the “long arm statute” (§ 5-514), the defendant is not absent from the state within the meaning of this statute. Blankenship v. Myers, 97 Idaho 356, 544 P.2d 314 (1975).

Nature of Absence.

It is immaterial what may be the cause of absence or whether it be of a mere temporary nature or a change of residence and domicile. Anthes v. Anthes, 21 Idaho 305, 121 P. 553 (1912). Absence of husband from the state tolled statute of limitations as to support order in divorce decree. Despain v. Despain, 78 Idaho 185, 300 P.2d 500 (1956).

Aggregating Successive Absences.

Where departure from state, after accrual of cause of action, is within exception providing that such absences shall not be computed, every absence sufficient to suspend running of limitations must be counted and successive absences will be aggregated. Roberts v. Hudson, 49 Idaho 132, 286 P. 364 (1930).

Construction with Other Law.

Sections 5-514 and 49-2421 do not impliedly repeal this section. Tetzlaff v. Brooks, 130 Idaho 903, 950 P.2d 1242 (1997).

Foreign Corporation.

Trial court erred in granting summary judgment to foreign defendant on grounds that the statute of limitations had run and had not been tolled under this section, since plaintiff should have been given the opportunity to show that reasonably diligent efforts had been made to serve the defendant without success, so that the statute of limitations had been tolled. Lipe v. Javelin Tire Co., 96 Idaho 723, 536 P.2d 291 (1975).

Where plaintiff had known out-of-state address of foreign corporation defendant who had withdrawn from doing business in Idaho from shortly after injury and had known enough to mail his claim letter to that address and defendant foreign corporation had been in business at that address since 1968 and plaintiff had in his possession business forms with the address, action filed some two years and eleven days after the injury was barred by the statute of limitations. Lipe v. Javelin Tire Co., 97 Idaho 805, 554 P.2d 1302 (1976).

Grantor of Mortgaged Property.

One who sells or reencumbers mortgaged premises can not by absenting himself from the state continue in force, beyond what would otherwise be period of limitations, lien of first mortgage to detriment of his subsequent grantee or mortgagee. Dighton v. First Exch. Nat’l Bank, 33 Idaho 273, 192 P. 832 (1920).

Grantee of mortgagor, although not obligated to pay debt, who has acquired interest in premises before right to foreclosure is barred, can not plead statute of limitations in foreclosure suit if debtor has suspended period with respect to debt by his continued absence from state. Dighton v. First Exch. Nat’l Bank, 33 Idaho 273, 192 P. 832 (1920).

Whatever prevents running of statute of limitations as to debt will also prevent its running as to lien of mortgage. Dighton v. First Exch. Nat’l Bank, 33 Idaho 273, 192 P. 832 (1920).

Long-arm Statute.

Where jurisdiction of a defendant may be had under the “long arm statute” (§ 5-514), the defendant is not absent from the state within the meaning of this statute. Blankenship v. Myers, 97 Idaho 356, 544 P.2d 314 (1975).

Nature of Absence.

Nonresident Debtors.

It is immaterial what may be the cause of absence or whether it be of a mere temporary nature or a change of residence and domicile. Anthes v. Anthes, 21 Idaho 305, 121 P. 553 (1912). Nonresident Debtors.

The words “return to the state” apply to a nonresident debtor who enters into a contract in a foreign state and thereafter comes into this state, as well as to a citizen who enters into a contract within this state and thereafter departs from the state. West v. Theis, 15 Idaho 167, 96 P. 932 (1908).

Pleading and Proof.

Allegation that defendant departed from state and has ever since been “a resident of and domiciled in California” can not be said to be an ambiguous or unintelligible allegation of his being “out of or absent from the state.” MacLeod v. Stelle, 43 Idaho 64, 249 P. 254 (1926).

Reasonably Diligent Efforts.

Summary judgment was properly granted based on the running of the statute of limitations under§ 5-216 in a claim for payment on a note, where, although the defendant left the state and never returned, the plaintiffs made only two attempts by letter to contact the defendant more than five years apart; this did not constitute “reasonably diligent efforts” so as to toll the statute of limitations under this rule. Butterfield v. MacKenzie, 132 Idaho 62, 966 P.2d 658 (Ct. App. 1998).

Tolling.

This section tolls the running of a statute of limitations only when the party against whom the claim is made was out of state and during that time could not have been located for service of process with reasonably diligent efforts. Tetzlaff v. Brooks, 130 Idaho 903, 950 P.2d 1242 (1997).

Defendant’s failure to file a certificate of assumed business name did not implicate the statute of limitation tolling provisions of this section, where the uncontroverted evidence established that at all relevant times defendant had on file with the secretary of state a designation of registered agent authorized to receive service of process. Noreen v. Price Dev. Co., 135 Idaho 816, 25 P.3d 129 (Ct. App. 2001).

Am. Jur. 2d.

C.J.S.

Cross References.

Action for recovery of real property or possession thereof, disability of persons,§ 5-213.

Coexisting disabilities, effect,§ 5-236.

Disability must exist when right of action accrued,§ 5-235.

Compiler’s Notes.

The bracketed semicolon at the end of clause 2. was inserted by the compiler.

Section 2 of S.L. 1976, ch. 276, read: “This act shall apply retroactively as respects all claims heretofore accrued and also to acts, errors or omissions heretofore or hereafter occurring.”

Effective Dates.

Section 3 of S.L. 1976, ch. 276 provided that the act should take effect on and after September 1, 1976.

Application.

When two statutes are capable of coexistence, it is the duty of the courts to harmonize and reconcile them so as to deprive neither of potency and force; thus,§ 5-236 which declares that the statute of limitations remains tolled where a person is both a minor and incompetent has to be read in conjunction with this section which specifically limits the tolling period for both minority and incompetency to six years. Brackney v. Combustion Eng’g, Inc., 674 F.2d 812 (9th Cir. 1982). «Title 5»«Ch. 2»«§ 5-230»

Cross References.

Action for recovery of real property or possession thereof, disability of persons,§ 5-213.

Coexisting disabilities, effect,§ 5-236.

Disability must exist when right of action accrued,§ 5-235.

Compiler’s Notes.

The bracketed semicolon at the end of clause 2. was inserted by the compiler.

Section 2 of S.L. 1976, ch. 276, read: “This act shall apply retroactively as respects all claims heretofore accrued and also to acts, errors or omissions heretofore or hereafter occurring.”

Effective Dates.

Section 3 of S.L. 1976, ch. 276 provided that the act should take effect on and after September 1, 1976.

Application.

When two statutes are capable of coexistence, it is the duty of the courts to harmonize and reconcile them so as to deprive neither of potency and force; thus,§ 5-236 which declares that the statute of limitations remains tolled where a person is both a minor and incompetent has to be read in conjunction with this section which specifically limits the tolling period for both minority and incompetency to six years. Brackney v. Combustion Eng’g, Inc., 674 F.2d 812 (9th Cir. 1982). The 1976 amendment to this section enacted on March 31, 1976, which provided that subsequent to September 1, 1976, no action would be tolled for a period of more than six years, was expressly made retroactive by the Idaho legislature so as to destroy any stale cause of action which had been lying idle for more than six years; thus, a minor’s cause of action filed in 1979 for a wrongful death which occurred in 1961 was properly dismissed as barred by the statute of limitations, since the minor had sat on his remedy for more than 15 years under the old minority tolling provision and since he had failed to file suit during the five month period after the law was changed and before the new law became effective. Brackney v. Combustion Eng’g, Inc., 674 F.2d 812 (9th Cir. 1982).

Imprisonment.

Where the plaintiff was arrested in July, 1974 on a criminal complaint of embezzlement and imprisoned for one day before being released on his own recognizance, and following his conviction was again imprisoned, his cause of action under the federal civil rights statute, 42 U.S.C.S. § 1983, arose at the time of his first imprisonment and the three-year statute of limitations under§ 5-218 was not tolled under this section by his subsequent imprisonment; accordingly, the filing of his civil rights action in August, 1977 was not timely and the action was barred. Gowin v. Altmiller, 663 F.2d 820 (9th Cir. 1981). But see Idaho State Bar v. Tway, 128 Idaho 794, 919 P.2d 323 (1996).

Married Woman.

Under Idaho law, a married woman is empowered, without joining her husband, to bring an action for damages for her own personal injury; hence the provision governing the disability of a married woman did not toll the running of the statute as to a married woman’s action for medical malpractice until the termination of her marriage. Owens v. White, 380 F.2d 310 (9th Cir. 1967) (Decision prior to 1976 amendment).

Minors.

This section, the general tolling provision, applies to all procedures integral to commencing actions against private or public defendants, including the notice procedure of§ 6-906. Consequently, subdivision 1 of this section tolled the running of the time within which§ 6-906 required the minor plaintiffs to give notice to the school district, and the notice given on their behalf was adequate as a matter of law. Doe v. Durtschi, 110 Idaho 466, 716 P.2d 1238 (1986) (decision prior to enactment of§ 6-906A).

This section, providing for tolling of statutes of limitation against minors, serves to toll the time for filing a notice of claim under the Idaho Tort Claims Act,§ 6-906. Gailey v. Jerome County, 113 Idaho 430, 745 P.2d 1051 (1987).

Although the department of health and welfare was not literally a “person” under disability of minority, it was entitled to have the limitation period tolled by this section. State Dep’t of Health & Welfare ex rel. Gage v. Engelbert, 114 Idaho 89, 753 P.2d 825 (1988).

Purpose.

Minor’s parents’ claims arising from an automobile accident in which the minor was injured were time-barred, because neither§ 5-219 nor this section tolled the limitations period during the minor’s minority, since the parents sought personal recovery. Taft v. Jumbo Foods, Inc., 155 Idaho 511, 314 P.3d 193 (2013). Purpose.

The obvious intent of subdivision 1 of this section is to preserve the rights of injured minors until they are old enough to take appropriate action. Doe v. Durtschi, 110 Idaho 466, 716 P.2d 1238 (1986).

Am. Jur. 2d.

C.J.S.

ALR.

Effect of appointment of legal representative for minor on running of state statute of limitations against minor. 1 A.L.R.6th 407.

When is person, other than one claiming posttraumatic stress syndrome or memory repression, within coverage of statutory provision tolling running of limitations period on basis of mental disability. 23 A.L.R.6th 697.

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 171; R.S., R.C., & C.L., § 4071; C.S., § 6624; I.C.A.,§ 5-231, was repealed by S.L. 1971, ch. 111, § 2, effective July 1, 1972.

Am. Jur. 2d.

C.J.S.

“Judgment”.

Trial court’s finding of balance in plaintiff’s favor under accounting directed by supreme court to be taken pending appeal was not “judgment” for plaintiffs within provision permitting new action within one year after reversal. Steinour v. Oakley State Bank, 49 Idaho 293, 287 P. 949 (1930).

Am. Jur. 2d.

C.J.S.

Federal Injunction.

Where prosecution of action was barred by federal injunction in reorganization proceedings, another action brought in conformity with federal proceedings was not barred. Doxstater v. Northwest Cities Gas Co., 65 Idaho 814, 154 P.2d 498 (1944).

Non-Binding Arbitration.

Order denying the attorney’s motion to dismiss the client’s breach of contract action was reversed because the district court erred in holding that the statute of limitations was tolled by the pendency of the nonbinding fee arbitration proceedings, when there was no injunction or statute that stayed the client’s action against the attorney or that barred him from commencing the action until the nonbinding arbitration was completed. Wilhelm v. Frampton, 144 Idaho 147, 158 P.3d 310 (2007).

Am. Jur. 2d.

C.J.S.

Cross References.

Disabilities tolling statute of limitations,§§ 5-213, 5-230.

Am. Jur. 2d.

C.J.S.

Cross References.

Disabilities tolling statute of limitations,§§ 5-213, 5-230.

Application.

The function of this section is to determine the date of accrual of civil causes of action for purposes of the statute of limitation; this section does not pertain to criminal prosecutions. State v. Harrold, 113 Idaho 938, 750 P.2d 959 (Ct. App. 1988).

Construction with Other Statutes.

When two statutes are capable of coexistence, it is the duty of the courts to harmonize and reconcile them so as to deprive neither of potency and force; thus, this section which declares that the statute of limitations remains tolled where a person is both a minor and incompetent has to be read in conjunction with§ 5-230 which specifically limits the tolling period for both minority and incompetency to six years. Brackney v. Combustion Eng’g, Inc., 674 F.2d 812 (9th Cir. 1982).

Am. Jur. 2d.

C.J.S.

Creditor as Aggrieved Person.

When the purpose of a receiver’s action against a stockholder is to recover sufficient assets to pay a certain judgment, the judgment creditor is the “aggrieved party.” Weil v. Defenbach, 36 Idaho 37, 208 P. 1025 (1922).

Liability Created by Law.

The liability of a stockholder for corporate indebtedness to the amount unpaid upon the par value of his stock is not a “liability created by law” within the meaning of this section. Feehan v. Kendrick, 32 Idaho 220, 179 P. 507 (1918); Jensen v. Aikman, 32 Idaho 261, 181 P. 525 (1919).

Counterclaim by corporation against officer and director for loss of profits due to breach of fiduciary relationship between plaintiff and defendant was not a suit for liability “created by law.” Melgard v. Moscow Idaho Seed Co., 73 Idaho 265, 251 P.2d 546 (1952).

Stockholder’s Assessment.

Complaint sufficiently set out in detail the indebtedness being sued upon. Grimsmoe v. Kendrick, 42 Idaho 491, 247 P. 746 (1926).

Stockholder’s liability for assessment levied by insurance exchange is statutory and is governed by this section and§ 5-218. Fishback v. Jensen, 52 Idaho 61, 11 P.2d 361 (1932).

Wrongful Distribution of Assets.

Receiver’s action against directors to recover dividends wrongfully paid held not barred simply because creditors might have discovered when the dividends were paid if they had made certain investigations. Stoltz v. Scott, 23 Idaho 104, 129 P. 340 (1912).

This section applies to an action against a stockholder to recover assets wrongfully distributed to him. Weil v. Defenbach, 36 Idaho 37, 208 P. 1025 (1922). «Title 5»«Ch. 2»«§ 5-237»

Creditor as Aggrieved Person.

When the purpose of a receiver’s action against a stockholder is to recover sufficient assets to pay a certain judgment, the judgment creditor is the “aggrieved party.” Weil v. Defenbach, 36 Idaho 37, 208 P. 1025 (1922).

Liability Created by Law.

The liability of a stockholder for corporate indebtedness to the amount unpaid upon the par value of his stock is not a “liability created by law” within the meaning of this section. Feehan v. Kendrick, 32 Idaho 220, 179 P. 507 (1918); Jensen v. Aikman, 32 Idaho 261, 181 P. 525 (1919).

Counterclaim by corporation against officer and director for loss of profits due to breach of fiduciary relationship between plaintiff and defendant was not a suit for liability “created by law.” Melgard v. Moscow Idaho Seed Co., 73 Idaho 265, 251 P.2d 546 (1952).

Stockholder’s Assessment.

Complaint sufficiently set out in detail the indebtedness being sued upon. Grimsmoe v. Kendrick, 42 Idaho 491, 247 P. 746 (1926).

Stockholder’s liability for assessment levied by insurance exchange is statutory and is governed by this section and§ 5-218. Fishback v. Jensen, 52 Idaho 61, 11 P.2d 361 (1932).

Wrongful Distribution of Assets.

Receiver’s action against directors to recover dividends wrongfully paid held not barred simply because creditors might have discovered when the dividends were paid if they had made certain investigations. Stoltz v. Scott, 23 Idaho 104, 129 P. 340 (1912).

Cited

This section applies to an action against a stockholder to recover assets wrongfully distributed to him. Weil v. Defenbach, 36 Idaho 37, 208 P. 1025 (1922). Cited Billings v. Sisters of Mercy, 86 Idaho 485, 389 P.2d 224 (1964); Anderson v. Anderson, Kaufman, Ringert & Clark, Chartered, 116 Idaho 359, 775 P.2d 1201 (1989).

Am. Jur. 2d.

18B Am. Jur. 2d, Corporations, §§ 1156, 1157, 1580, 1581, 1626.

19 Am. Jur. 2d, Corporations, § 1995 et seq.

C.J.S.

§ 5-238. Acknowledgment or new promise — Effect on operation of statute — Effect of partial payment.

No acknowledgment or promise is sufficient evidence of a new or continuing contract by which to take the case out of the operation of this chapter, unless the same is contained in some writing, signed by the party to be charged thereby; but any payment of principal or interest is equivalent to a new promise in writing, duly signed, to pay the residue of the debt.

History.

C.C.P. 1881, § 178; R.S., R.C., & C.L., § 4078; C.S., § 6631; am. 1923, ch. 49, § 1, p. 57; I.C.A.,§ 5-238.

Acknowledgment Before Debt Barred.

The acknowledgment and promise to pay a debt which would otherwise be barred by limitations must be in writing signed by the party sought to be charged as well where the original debt is not barred when the acknowledgment and promise is made, as in cases where the statute has already run. Reed v. Smith, 1 Idaho 533 (1874).

Clear and definite acknowledgment of the existence of a contract and liability which has not at the time been barred by the statute of limitations, whether coupled with a direct promise to pay or not, carries with it an implied promise to pay the debt and fixes a new date from which the statute begins to run. Dern v. Olsen, 18 Idaho 358, 110 P. 164 (1910).

Conduct as a shareholder of a subscriber to corporate stock which did not include execution of a writing or payment of a portion of the principal or interest on the subscription did not acknowledge the obligation so as to take an action to recover the subscription out of the statute of limitations as to an instalment barred at the time of commencement of the action. Cassia Creek Reservoir Co. v. Harper, 91 Idaho 488, 426 P.2d 209 (1967). «Title 5»«Ch. 2»«§ 5-238»

Acknowledgment Before Debt Barred.

The acknowledgment and promise to pay a debt which would otherwise be barred by limitations must be in writing signed by the party sought to be charged as well where the original debt is not barred when the acknowledgment and promise is made, as in cases where the statute has already run. Reed v. Smith, 1 Idaho 533 (1874).

Clear and definite acknowledgment of the existence of a contract and liability which has not at the time been barred by the statute of limitations, whether coupled with a direct promise to pay or not, carries with it an implied promise to pay the debt and fixes a new date from which the statute begins to run. Dern v. Olsen, 18 Idaho 358, 110 P. 164 (1910).

Amendment of 1923.

Conduct as a shareholder of a subscriber to corporate stock which did not include execution of a writing or payment of a portion of the principal or interest on the subscription did not acknowledge the obligation so as to take an action to recover the subscription out of the statute of limitations as to an instalment barred at the time of commencement of the action. Cassia Creek Reservoir Co. v. Harper, 91 Idaho 488, 426 P.2d 209 (1967). Amendment of 1923.

The amendment of 1923 applies to all actions brought after its enactment although the payment may have been made before. Vollmer Clearwater Co. v. Hines, 49 Idaho 563, 290 P. 397 (1930).

Applicable to Judgments.

Provision requiring written acknowledgment of promise to pay debt barred by limitation signed by debtor was applicable to judgment. Woods v. Locke, 49 Idaho 486, 289 P. 610 (1930).

Debt as “Continuing Contract.”

Debt which has not been barred by the statute of limitations is a “continuing contract” within the meaning of this section which does not, in any respect, change, alter, or modify the original contract, but merely constitutes a “waiver” of that portion of this section which may have run prior to the acknowledgment. Cummings v. Langroise, 36 F. Supp. 174 (D. Idaho 1940), aff’d 123 F.2d 969 (9th Cir. 1941), cert. denied, 316 U.S. 664, 62 S. Ct. 944, 86 L. Ed. 1741 (1942).

Effect Upon Limitation Period.

Where an ex-husband failed to make payments on a promissory note, the statute of limitations did not bar the ex-wife’s breach of contract claim, because the ex-husband’s payment of interest or principal served to restart the statute on all of the installments. Horkley v. Horkley, 144 Idaho 879, 173 P.3d 1138 (2007).

Where defendant/debtor executed an agreement at the time of his parole, which acknowledged the fine/debt from his original sentencing four years previous and a collection agency files suit on that debt less than three years after the acknowledgement, the agency’s action was not barred. Collection Bureau, Inc. v. Dorsey, 150 Idaho 695, 249 P.3d 1150 (2011).

Judgment Lien Not Extended.

Though partial payment or extension may extend the maturity date and toll the statute of limitations as against a judgment, it will not extend or continue the judgment lien unless made in writing so as to be entitled to recordation. Platts v. Pacific First Fed. Sav. & Loan Ass’n, 62 Idaho 340, 111 P.2d 1093 (1941).

New Agreement or Revival of Old.

Method of determining whether agreement after limitations had run was acknowledgment of a continued Carey Act water contract, or whether new obligation was created, is to inquire whether, in action to enforce obligation, new contract or old one as extended would be pleaded as foundation of plaintiff’s claim. Mendini v. Milner, 47 Idaho 439, 276 P. 313 (1929).

Partial Payment of Debt.

The limitation period can be extended by an obligor who makes a partial payment after the note is due, as such partial payment is deemed equivalent to a new promise by the obligor to satisfy the debt. Thomson v. Sunny Ridge Village Partnership, 118 Idaho 330, 796 P.2d 539 (Ct. App. 1990). Because this section treats a payment of interest as the equivalent of a new promise, and because a promise binds only the person making it, so too a partial payment should extend a statutory period of limitation only as to the person who makes the payment, although, certain exceptions include when a nonpaying co-debtor directs or requests that the payment be made, authorizes or consents to the payment, or ratifies such payment. Thomson v. Sunny Ridge Village Partnership, 118 Idaho 330, 796 P.2d 539 (Ct. App. 1990).

Where the beneficiaries received, on November 8, 2012, a partial payment on a trust deed note with an original maturity date of June 28, 2006, and applied that payment to the debt, that partial payment restarted the five-year statute of limitation on any action on the note. Monitor Fin., L.C. v. Wildfire Ridge Estates, LLC, 164 Idaho 555, 433 P.3d 183 (2019).

Payment.

Payments made by a third party to a creditor on behalf of, and at the express request of, the debtor tolls the statute of limitations and creates a new promise to pay the residue of the debt. Joseph v. Darrar, 93 Idaho 762, 472 P.2d 328 (1970).

Collection of the merchandise account balance was not time-barred under this section because of payments on the account; a payment on account removes the debt from the operation of the statute of limitations pursuant to this section. Modern Mills, Inc. v. Havens, 112 Idaho 1101, 739 P.2d 400 (Ct. App. 1987).

Evidence adequately supported the court’s conclusion that the promise to pay had been renewed by an interest payment, where the trial judge was persuaded that alterations on the face of the exhibits were made in response to the promisor’s directions; therefore, the action on the note was not barred by the five-year limitation period prescribed by§ 5-216. Modern Mills, Inc. v. Havens, 112 Idaho 1101, 739 P.2d 400 (Ct. App. 1987).

Renewal Note Not Usurious.

Where the statute of limitations had not run against a debt evidenced by a note bearing the legal rate of 10 per cent interest when a new note, also bearing 10 per cent interest, was given after the maximum rate allowable by law had been changed to 8 per cent, and the statute had not run against the new note when an action was commenced thereon and no additional consideration passed when the new note was executed, the only change made being the naming of a new maturity date, the new note was simply a “renewal note” and was not usurious. Dufrense v. Hammersten, 61 Idaho 714, 106 P.2d 861 (1940).

Separate Contracts.

Under the law as it existed at the time the mortgages in question were made, each note, and the mortgage given to secure the payment of the same, was to be construed as one contract. Steward v. Nelson, 54 Idaho 437, 32 P.2d 843 (1934).

Settlement of Claim.

Suit Upon Original Demand or New Promise.

Settlement between farmer and manufacturer of herbicide did not toll the limitation period on the farmer’s product liability claim. The debt acknowledged and paid was for a particular year and for a particular acreage, and not a debt for any and all future uses; therefore, the settlement did not amount to payment of “principle or interest . . . equivalent to a new promise . . . to pay the residue of the debt.” Brower v. E.I. DuPont De Nemours & Co., 117 Idaho 780, 792 P.2d 345 (1990). Suit Upon Original Demand or New Promise.

The authorities are divided as to whether the suit should be upon the original demand or obligation or the new promise; however, Idaho is committed to the doctrine that the running of the statute of limitations does not extinguish the debt and that the action should be upon the original obligation, and that the bar of the statute of limitations merely operates on the remedy and does not extinguish the debt. Kelly v. Leachman, 3 Idaho 629, 33 P. 44 (1893); Moulton v. Williams, 6 Idaho 424, 55 P. 1019 (1899); Sterrett v. Sweeney, 15 Idaho 416, 98 P. 418 (1908); McLeod v. Rogers, 28 Idaho 412, 154 P. 970 (1916).

What Constitutes Acknowledgment.

The giving of new notes, including the interest due on the original debt, is sufficient acknowledgment of the whole indebtedness to prevent the running of the statute of limitations. Kelly v. Leachman, 3 Idaho 629, 33 P. 44 (1893).

An indorsement written on a note and mortgage by which the debtor purports to acknowledge and renew the same is evidence of waiver by the debtor of the bar of the statute. Moulton v. Williams, 6 Idaho 424, 55 P. 1019 (1899).

Payment on a promissory note to remove the bar of the statute of limitations must be evidenced by a writing, must be a voluntary payment by the payee, and must be made for the purpose of applying the payment on the note. Gray v. Pierson, 7 Idaho 540, 64 P. 233 (1901) (decision prior to 1923 amendment.).

Payment of interest on mortgage debt is such an acknowledgment as tolls the statute against foreclosure. Holland Bank v. Brockman, 52 Idaho 324, 14 P.2d 621 (1932); Brown v. Deck, 65 Idaho 710, 152 P.2d 587 (1944).

A written approval by the debtor of a report of the lender showing advances and loans made up to that time and showing that none of the advances or loans had been repaid constituted an acknowledgment that the loans had not been repaid and that the debt continued to exist so that the statute of limitations began to run anew on the date of such acknowledgment. Cummings v. Langroise, 36 F. Supp. 174 (D. Idaho 1940), aff’d 123 F.2d 969 (9th Cir. 1941), cert. denied, 316 U.S. 664, 62 S. Ct. 944, 86 L. Ed. 1741 (1942).

Husband and his wife attempted to recover loans made to decedent’s farming operation, which was a partnership; however, the statute of limitations barred recovery, despite the husband’s and wife’s contention that the parties had entered into a stipulation, which was not an acknowledgment of the loans. Reding v. Reding, 141 Idaho 369, 109 P.3d 1111 (2005).

Who May Make Acknowledgment.

An administrator can not “acknowledge or promise” to pay “a new or continuing contract” so as to remove the same from the operation of the statute of limitations. Dern v. Olsen, 18 Idaho 358, 110 P. 164 (1910).

Payment of interest and postponement of payment on community property mortgage by husband constitutes sufficient acknowledgment under this section. Cook v. Stellmon, 43 Idaho 433, 251 P. 957 (1927).

Payment of interest by one of two joint makers of note payable on demand did not suspend running of statute of limitations as to the other. Mahas v. Kasiska, 47 Idaho 179, 276 P. 315 (1928). Administrator may waive the bar of the statute where he is the sole owner of the estate and there are no creditors other than the one whose right is thus extended. Holland Bank v. Brockman, 52 Idaho 324, 14 P.2d 621 (1932).

When action is in rem to foreclose mortgage debt, payments made by the owner of the redemption operate to keep the mortgage lien alive though the debt be barred against the original debtor. Holland Bank v. Brockman, 52 Idaho 324, 14 P.2d 621 (1932).

Am. Jur. 2d.

C.J.S.

Application.

Idaho’s statute of limitation will apply only if the plaintiff is an Idaho citizen when the cause of action accrues. Miller v. Stauffer Chem. Co., 99 Idaho 299, 581 P.2d 345 (1978).

Constitutionality.

This section is not in violation of the fourteenth amendment of the United States Constitution, either as a violation of equal protection or the right to travel. Miller v. Stauffer Chem. Co., 99 Idaho 299, 581 P.2d 345 (1978).

Construction.

Where the statute of limitations of a foreign state is set up as a defense, it is error for the court, on motion, without a trial, to render a judgment of dismissal, for the reason that plaintiff, under§ 5-812 (repealed), is deemed to have controverted the new matter thus set up as a defense, and defendant is put to his proof; the plaintiff may deny the existence of such statute of limitations as pleaded, or may confess and avoid it in any manner the law permits. Alspaugh v. Reid, 6 Idaho 223, 55 P. 300 (1898).

Where a resident of this state goes into the state of Washington and makes a partial payment upon a Washington contract after its maturity, and before such contract is barred by the statute of limitations of that state, upon his return to this state the contract follows him as made, and is enforceable under the laws of this state, and the statute of limitations of this state begins to run upon his reentry into this state, after such payment. Sterrett v. Sweeney, 15 Idaho 416, 98 P. 418 (1908).

The phrase “has arisen in another state” refers to and means the state in which the foreign contract is to be paid or discharged, and has no application to an intermediate state or foreign country through which the debtor may subsequently travel or in which he may reside for a sufficient length of time to constitute the bar of the statute of limitations of such state, prior to coming to this state, where an action is eventually commenced. West v. Theis, 15 Idaho 167, 96 P. 932 (1909). «Title 5»«Ch. 2»«§ 5-239»

Application.

Idaho’s statute of limitation will apply only if the plaintiff is an Idaho citizen when the cause of action accrues. Miller v. Stauffer Chem. Co., 99 Idaho 299, 581 P.2d 345 (1978).

Constitutionality.

This section is not in violation of the fourteenth amendment of the United States Constitution, either as a violation of equal protection or the right to travel. Miller v. Stauffer Chem. Co., 99 Idaho 299, 581 P.2d 345 (1978).

Construction.

Where the statute of limitations of a foreign state is set up as a defense, it is error for the court, on motion, without a trial, to render a judgment of dismissal, for the reason that plaintiff, under§ 5-812 (repealed), is deemed to have controverted the new matter thus set up as a defense, and defendant is put to his proof; the plaintiff may deny the existence of such statute of limitations as pleaded, or may confess and avoid it in any manner the law permits. Alspaugh v. Reid, 6 Idaho 223, 55 P. 300 (1898).

Where a resident of this state goes into the state of Washington and makes a partial payment upon a Washington contract after its maturity, and before such contract is barred by the statute of limitations of that state, upon his return to this state the contract follows him as made, and is enforceable under the laws of this state, and the statute of limitations of this state begins to run upon his reentry into this state, after such payment. Sterrett v. Sweeney, 15 Idaho 416, 98 P. 418 (1908).

The phrase “has arisen in another state” refers to and means the state in which the foreign contract is to be paid or discharged, and has no application to an intermediate state or foreign country through which the debtor may subsequently travel or in which he may reside for a sufficient length of time to constitute the bar of the statute of limitations of such state, prior to coming to this state, where an action is eventually commenced. West v. Theis, 15 Idaho 167, 96 P. 932 (1909). “A cause of action arises” at the time and the place in the state or foreign country when and where the debt is to be paid or the contract performed and continues and follows the debtor until it is either barred by the statute of limitations of the state wherein it arose or until the debtor has lived within this state a sufficient length of time to bar it by the statute of limitations of this state. West v. Theis, 15 Idaho 167, 96 P. 932 (1909).

Foreign Actions.

Because an action which arose in Canada was not time barred in Canada when original or amended pleadings were filed in Idaho, the provisions of this section were not applicable and Idaho’s limitation period applied. Attorney Gen. ex rel. Her Majesty the Queen in Right of Can. v. Tysowski, 118 Idaho 737, 800 P.2d 133 (Ct. App. 1990).

Purpose.

Borrowing statutes attempt to promote uniformity of limitation periods and to discourage forum shopping by requiring the trial court to “borrow” the statute of limitations of the jurisdiction that the legislature has determined bears the closest relationship to the action, usually the jurisdiction where the action arose. Miller v. Stauffer Chem. Co., 99 Idaho 299, 581 P.2d 345 (1978).

Idaho Law Review.

Idaho Law Review. — Choice of Law in Idaho: A Survey and Critique of Idaho Cases, Andrew S. Jorgensen. 49 Idaho L. Rev. 547 (2013).

Am. Jur. 2d.

C.J.S.

Appointment of Administrator.

The word “action” includes proceedings for the appointment of an administrator. Gwinn v. Melvin, 9 Idaho 202, 72 P. 961 (1903).

C.J.S.

§ 5-241. Accrual of actions arising out of the design or construction of improvement to real property.

Actions will be deemed to have accrued and the statute of limitations shall begin to run as to actions against any person by reason of his having performed or furnished the design, planning, supervision or construction of an improvement to real property, as follows:

1. Tort actions, if not previously accrued, shall accrue and the applicable limitation statute shall begin to run six (6) years after the final completion of construction of such an improvement.
2. Contract actions shall accrue and the applicable limitation statute shall begin to run at the time of final completion of construction of such an improvement.

The times fixed by these sections [this section] shall not be asserted by way of defense by any person in actual possession or control, as owner, tenant, or otherwise, of such an improvement at the time any deficiency in such an improvement constitutes the proximate cause of an injury or death for which it is proposed to bring an action.

Nothing in this section shall be construed as extending the period prescribed by the laws of this state for the bringing of any action.

As used in this section, the term “person” shall mean an individual, corporation, partnership, business trust, unincorporated organization, association, or joint stock company.

History.

I.C.,§ 5-241, as added by 1965, ch. 101, § 1, p. 187.

Compiler’s Notes.

The bracketed insertion, in the fourth paragraph, was added by the compiler to supply the presumed intended reference, as this section was the only code section affected by S.L. 1965, ch. 101.

Applicability.

Subsection (b) applied to professional malpractice claims arising from the final completion of construction, unless they had previously accrued, and since the date of accrual was undisputed by the parties and because it arose before the final completion of construction set out in subsection (a), that statute was inapplicable, and§ 5-219 4. applied since the cause of action for professional malpractice accrued as of the time of the occurrence, act or omission complained of. Nerco Minerals Co. v. Morrison Knudsen Corp., 140 Idaho 144, 90 P.3d 894 (2004).

A breach of the implied warranty of habitability arises in contract; thus, the applicable limitation statute begins to run at the time of final completion of construction of an improvement. Petrus Family Trust v. Kirk, 163 Idaho 490, 415 P.3d 358 (2018).

Basis of Action.

An action founded in contract and arising out of the design or construction of improvements to real property must be brought within five years from the date of the completion of the construction, and a cause of action founded in professional malpractice arising out of the design or construction of improvements to real property must be brought within two years of the discovery of the alleged malpractice and in no event later than eight years following the completion of the construction. Twin Falls Clinic & Hosp. Bldg. Corp. v. Hamill, 103 Idaho 19, 644 P.2d 341 (1982).

The department of transportation had a duty of ordinary care to protect against the danger created by the location of a southern driveway, and the possible supervisory role the department might have played in the construction of a northern driveway did not trigger the provisions in this section, nor did the statute of repose in this section apply. Esterbrook v. State, 124 Idaho 680, 863 P.2d 349 (1993).

Claims Untimely.

Where the owners of a poorly constructed clinic sued its architect eight years after the completion of the building,§ 5-219 and this section barred all claims against the architect except those which rested upon fraudulent misrepresentations made by the architect. Twin Falls Clinic & Hosp. Bldg. Corp. v. Hamill, 103 Idaho 19, 644 P.2d 341 (1982).

Where homeowner commenced her personal injury action against previous homeowner within two years of sustaining injuries from the explosion of a woodburning stove, but where the construction of the stove, including the log-lighter device, was completed more than eight years before homeowner filed her complaint, her claim seeking to find the previous homeowner liable for the negligent design and construction of the stove was time-barred and properly dismissed. Barab v. Plumleigh, 123 Idaho 980, 853 P.2d 635 (Ct. App. 1993).

Under this section, a property owner’s breach of contract claim against a well-drilling company was barred by the statute because the four-year limitations period began to run in August 2006 when construction of a well on the owner’s property was completed; hence, the owner’s April 6, 2011 action was untimely. Stapleton v. Jack Cushman Drilling, 153 Idaho 735, 291 P.3d 418 (2012).

Constitutionality.

This section is not violative of the equal protection clause of the federal constitution because protecting against the litigation of stale claims is a legitimate state interest justifying a special classification for architects and builders. Twin Falls Clinic & Hosp. Bldg. Corp. v. Hamill, 103 Idaho 19, 644 P.2d 341 (1982).

Where there are valid differences supporting the legislative classification as between architects and builders on the one hand and owners, occupiers and material suppliers on the other, the various classes are not similarly situated and, therefore, this section does not violate Idaho Const., Art. III, § 19. Twin Falls Clinic & Hosp. Bldg. Corp. v. Hamill, 103 Idaho 19, 644 P.2d 341 (1982).

Estoppel.

The elements of equitable estoppel, the only non-statutory bar to a statute of limitations defense in Idaho, are: (1) a false representation or concealment of a material fact with actual or constructive knowledge of the truth; (2) that the party asserting estoppel did not know or could not discover the truth; (3) that the false representation or concealment was made with the intent that it be relied upon; and (4) that the person to whom the representation was made, or from whom the facts were concealed, relied and acted upon the representation or concealment to his prejudice. J.R. Simplot Co. v. Chemetics Int’l, Inc., 126 Idaho 532, 887 P.2d 1039 (1994).

Estoppel does not “extend” a statute of limitation. Rather, it prevents a party from pleading and utilizing the statute of limitation as a bar, although the time limit of the statute may have already run. J.R. Simplot Co. v. Chemetics Int’l, Inc., 126 Idaho 532, 887 P.2d 1039 (1994).

Fixture.

A fixture is “real property” for the purposes of this section. West v. El Paso Prods. Co., 122 Idaho 133, 832 P.2d 306 (1992).

Latent Defects.

Subdivision (a) of this section provides a limited discovery rule for tort claims arising out of the design or construction of improvements to real property; this tolling can apply only to latent defects, as patent defects are deemed discovered. Hibbler v. Fisher, 109 Idaho 1007, 712 P.2d 708 (Ct. App. 1985).

Negligent Inspection.

Cause of action against architect alleging negligent inspection of apartment complex fell within this section, rather than§ 5-219, because plaintiff’s tort cause of action was one which arose out of the construction of an improvement to real property. Stephens v. Stearns, 106 Idaho 249, 678 P.2d 41 (1984).

Plaintiff clearly filed suit within the statutory limit where plaintiff’s cause of action against architect accrued on the day she sustained her injuries, which was four years after architect’s last chance to be negligent, which was the day on which he made his final inspection and where plaintiff filed suit within 16 months after her injury. Stephens v. Stearns, 106 Idaho 249, 678 P.2d 41 (1984).

Statement in Twin Falls Clinic v. Hamill , 103 Idaho 19, 644 P.2d 341 (1982) that this section engrafted a limited discovery exception in the area of tort liability arising out of the design or construction of improvements to real property, and that such exemption would only be applicable to latent defects since patent defects by definition would be those which should have been discovered, was not intended to be a broad statement expressing the general application of this section but rather, was an expression of how this section functions in the narrow setting of an action alleging defective design; where plaintiff had not sought to prove that defendant architect’s design was defective, but alleged that he was negligent in his inspection of the apartment, such statement of law did not apply. Stephens v. Stearns, 106 Idaho 249, 678 P.2d 41 (1984).

This section is not violative of the equal protection clause of the federal constitution because protecting against the litigation of stale claims is a legitimate state interest justifying a special classification for architects and builders. Twin Falls Clinic & Hosp. Bldg. Corp. v. Hamill, 103 Idaho 19, 644 P.2d 341 (1982).

Where there are valid differences supporting the legislative classification as between architects and builders on the one hand and owners, occupiers and material suppliers on the other, the various classes are not similarly situated and, therefore, this section does not violate Idaho Const., Art. III, § 19. Twin Falls Clinic & Hosp. Bldg. Corp. v. Hamill, 103 Idaho 19, 644 P.2d 341 (1982).

Estoppel.

The elements of equitable estoppel, the only non-statutory bar to a statute of limitations defense in Idaho, are: (1) a false representation or concealment of a material fact with actual or constructive knowledge of the truth; (2) that the party asserting estoppel did not know or could not discover the truth; (3) that the false representation or concealment was made with the intent that it be relied upon; and (4) that the person to whom the representation was made, or from whom the facts were concealed, relied and acted upon the representation or concealment to his prejudice. J.R. Simplot Co. v. Chemetics Int’l, Inc., 126 Idaho 532, 887 P.2d 1039 (1994).

Estoppel does not “extend” a statute of limitation. Rather, it prevents a party from pleading and utilizing the statute of limitation as a bar, although the time limit of the statute may have already run. J.R. Simplot Co. v. Chemetics Int’l, Inc., 126 Idaho 532, 887 P.2d 1039 (1994).

Fixture.

A fixture is “real property” for the purposes of this section. West v. El Paso Prods. Co., 122 Idaho 133, 832 P.2d 306 (1992).

Latent Defects.

Subdivision (a) of this section provides a limited discovery rule for tort claims arising out of the design or construction of improvements to real property; this tolling can apply only to latent defects, as patent defects are deemed discovered. Hibbler v. Fisher, 109 Idaho 1007, 712 P.2d 708 (Ct. App. 1985).

Negligent Inspection.

Cause of action against architect alleging negligent inspection of apartment complex fell within this section, rather than§ 5-219, because plaintiff’s tort cause of action was one which arose out of the construction of an improvement to real property. Stephens v. Stearns, 106 Idaho 249, 678 P.2d 41 (1984).

Plaintiff clearly filed suit within the statutory limit where plaintiff’s cause of action against architect accrued on the day she sustained her injuries, which was four years after architect’s last chance to be negligent, which was the day on which he made his final inspection and where plaintiff filed suit within 16 months after her injury. Stephens v. Stearns, 106 Idaho 249, 678 P.2d 41 (1984).

Negligent Installation.

Statement in Twin Falls Clinic v. Hamill, 103 Idaho 19, 644 P.2d 341 (1982) that this section engrafted a limited discovery exception in the area of tort liability arising out of the design or construction of improvements to real property, and that such exemption would only be applicable to latent defects since patent defects by definition would be those which should have been discovered, was not intended to be a broad statement expressing the general application of this section but rather, was an expression of how this section functions in the narrow setting of an action alleging defective design; where plaintiff had not sought to prove that defendant architect’s design was defective, but alleged that he was negligent in his inspection of the apartment, such statement of law did not apply. Stephens v. Stearns, 106 Idaho 249, 678 P.2d 41 (1984). Negligent Installation.

Where plaintiffs in an action alleging negligence in the installation of a water system did not discover latent defects before the end of the six-year accrual period allowed by this section, they had four more years under§ 5-224 in which to file the negligence action. Since the action was commenced within the ten-year period, the negligence count was not barred by the applicable statute of limitation. Hibbler v. Fisher, 109 Idaho 1007, 712 P.2d 708 (Ct. App. 1985).

Raising of Affirmative Defense.

Defendant’s delay of three years after filing of complaint in asserting an affirmative defense under this section did not provide a basis to deny the motion for leave to amend. The court observed that it is common for parties to use the pre-trial process to sort out their claims and defenses and to hone their legal arguments; additionally, it appears that defendant asserted the defense as soon as it discovered the facts necessary to support the claim. West v. El Paso Prods. Co., 122 Idaho 133, 832 P.2d 306 (1992).

Repair Doctrine.

The “repair doctrine” bars a contractor or vendor of faulty goods, who has discouraged the owner or purchaser from filing suit until the applicable statutes of limitation have run, from utilizing the statutes of limitations as a defense; such doctrine has not been subscribed to either as a version of equitable estoppel or an alternative means of barring or tolling a statute of limitations defense by the courts of Idaho. J.R. Simplot Co. v. Chemetics Int’l, Inc., 126 Idaho 532, 887 P.2d 1039 (1994).

Running of Statute.

This section clearly states that “[t]ort actions . . . shall accrue and the applicable limitation statute shall begin to run six (6) years after the final completion of construction of such an improvement.” That language simply cannot be construed to mean the statute begins to run on the date of injury. West v. El Paso Prods. Co., 122 Idaho 133, 832 P.2d 306 (1992).

A personal injury action founded upon the negligent design or construction of an improvement to real property must be brought within two years of the injuries, and in no event later than eight years following the completion of construction. Barab v. Plumleigh, 123 Idaho 980, 853 P.2d 635 (Ct. App. 1993).

The statute of repose is triggered by the completion of an improvement’s construction, not its readiness for actual use. Barab v. Plumleigh, 123 Idaho 980, 853 P.2d 635 (Ct. App. 1993).

Statute of Repose.

This section is a statute of repose, not a statute of limitations, since its operation does not depend on the occurrence or discovery of injury. Petrus Family Trust v. Kirk, 163 Idaho 490, 415 P.3d 358 (2018).

ALR.

Fraud, Misrepresentation, or Deception as Estopping Reliance on Nonmedical Malpractice Statutes of Repose. 98 A.L.R.6th 417.

Compiler’s Notes.

The words “this act” refer to S.L. 1967, ch. 241,§§ 1-3, compiled as§§ 5-242 to 5-244.

Section 2 of S.L. 1976, ch. 184, § 1 of which added the last proviso, read: “This act shall apply retroactively as respects all claims heretofore accrued and also to acts, errors or omissions heretofore or hereafter occurring.”

Effective Dates.

Section 3 of S.L. 1976, ch. 184 declared an emergency. Approved March 19, 1976.

In General.

Under this section, a person could maintain an action for severe ionizing radiation burns at the time of exposure and still maintain another action for latent cancer which the radiation was proved to have caused twenty years later. Arnold v. Woolley, 95 Idaho 604, 514 P.2d 599 (1973).

Tort Claims.

Section 6-911 is the applicable statute of limitation under the Idaho Tort Claims Act. No other statute of limitation applies. Carman v. Carman, 114 Idaho 551, 758 P.2d 710 (Ct. App. 1988).

Amendments.

The 2011 amendment, by ch. 104, rewrote the first sentence, which read: “An action or proceeding to collect child support arrearages must be commenced within five (5) years after the child reaches the age of majority or within five (5) years after the child’s death, if death occurs before the child reaches majority.”

Compiler’s Notes.

Section 4 of S.L. 2011, ch. 104 provided: “Severability. The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of the remaining portions of this act.”

Effective Dates.

Section 5 of S.L. 2011, ch. 104, as amended by S.L. 2011, ch. 331, § 1 read: “An emergency existing therefor, which emergency is hereby declared to exist, this act shall be in full force and effect on and after its passage and approval, and retroactively to July 1, 1995, and shall apply to all orders currently being enforced by the Idaho Department of Health and Welfare Child Support Program such that any Idaho judgment for child support that would otherwise have expired since July 1, 1995, may be renewed on or before December 30, 2011.”

Application.

In a case for child support arrearages stemming back to 1979, this section and§ 5-215 were correctly applied to allow the mother to collect all arrearages from the enactment of this section in 1988 forward, as well as arrearages which had accrued within six years from the 1988 enactment of this section. Stonecipher v. Stonecipher, 131 Idaho 731, 963 P.2d 1168 (1998).

Legislative Intent.

The intent of the legislature in enacting this section was to extend the viability of judgments and, thus, increase the term of a child support judgment to a child’s twenty-third birthday. Thomas v. Worthington, 132 Idaho 825, 979 P.2d 1183 (1999) (see 2011 amendment).

Renewal of Judgment.

Where a district court judge incorrectly interpreted this section to include a complaint for renewal of judgment for past child support arrearages as an action or proceeding to collect past child support obligations, an attempt at execution of a judgment after the children reached their twenty-third birthdays was not within the statute of limitations. Thomas v. Worthington, 132 Idaho 825, 979 P.2d 1183 (1999) (see 2011 amendment).

Amendments.

The 2010 amendment, by ch. 144, in the second sentence in the last paragraph, inserted “reasonably” following “even if said use” and added “but said use shall not unreasonably interfere with the storage of water on the property.”

Purpose Consistent With Ownership.

This section supplants the common law rule by allowing servient estate holders to use their property for any purpose otherwise consistent with their ownership of the property. Owners of property subject to a prescriptive overflow easement could place concrete and other materials below the reservoir easement, although reservoir storage was reduced. Twin Lakes Canal Co. v. Choules, 151 Idaho 214, 254 P.3d 1210 (2011).

Compiler’s Notes.

S.L. 2000, ch. 150, § 1, effective July 1, 2000, and ch. 470, § 1, effective April 17, 2000, purported to enact a new section of chapter 2, title 5, Idaho Code, designated as§ 5-247. Since§ 5-247 as enacted by ch. 470, § 1 became effective first, it has been compiled as§ 5-247, and§ 5-247 as enacted by ch. 150, § 1, has been compiled as§ 5-248. The recompilation of the section enacted by S.L. 2000, ch. 150, as§ 5-248, was made permanent by S.L. 2005, ch. 25.

Effective Dates.

Section 2 of S.L. 2000, ch. 470 declared an emergency. Approved April 17, 2000.

Compiler’s Notes.

S.L. 2000, ch. 150, § 1, effective July 1, 2000, and ch. 470, § 1, effective April 17, 2000, purported to enact a new section of chapter 2, title 5, Idaho Code, designated as§ 5-247. Since§ 5-247 as enacted by ch. 470, § 1 became effective first, it has been compiled as§ 5-247, and§ 5-247 as enacted by ch. 150, § 1, has been compiled as§ 5-248. The recompilation of the section enacted by S.L. 2000, ch. 150, as§ 5-248, was made permanent by S.L. 2005, ch. 25.

Effective Dates.

Section 2 of S.L. 2000, ch. 150, provided that the act shall be in full force and effect on and after July 1, 2000.

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 182; R.S., R.C., & C.L., § 4090; C.S., § 6634; I.C.A.,§ 5-301, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho R. Civ. P. 17(a).

Action Against Insurance Carrier.

The provisions and procedures contemplated by§ 11-507 are applicable to a cause of action belonging to judgment debtors against their insurance carriers based on wrongful refusal by carriers to settle claims against judgment debtors within policy limits, which cause arises from the contractual obligation of the carriers and is a thing in action arising out of violation of an obligation and, thus, assignable under this section and§ 55-402. Whitehead v. Van Leuven, 347 F. Supp. 505 (D. Idaho 1972).

Agreement to Waive Implied Warranties After Assignment.

A provision in a conditional sales contract that it might be assigned to a named bank without notice to purchaser, and when assigned should be free from any defense, counter-claim, or cross-complaint by the purchaser, is valid and will bar the defense of a breach of implied warranty. United States ex rel. Adm’r of Fed. Hous. Admin. v. Troy-Parisian, Inc., 115 F.2d 224 (9th Cir. 1940), cert. denied, 312 U.S. 699, 61 S. Ct. 739, 85 L. Ed. 1133 (1941).

Cost Bill.

The assignee of a cost bill takes the same subject to any right of offset against the bill existing at the time of the assignment. Northwestern & Pac. Hypotheek Bank v. Rauch, 8 Idaho 50, 66 P. 807 (1901).

Counterclaim.

Defendant, in action by endorsee of non-negotiable note, may file counterclaim alleging that commodities purchased were of no value. Security Fin. Co. v. Jensen Auto Co., 48 Idaho 376, 282 P. 88 (1929). «Title 5»«Ch. 3»«§ 5-302»

Action Against Insurance Carrier.

The provisions and procedures contemplated by§ 11-507 are applicable to a cause of action belonging to judgment debtors against their insurance carriers based on wrongful refusal by carriers to settle claims against judgment debtors within policy limits, which cause arises from the contractual obligation of the carriers and is a thing in action arising out of violation of an obligation and, thus, assignable under this section and§ 55-402. Whitehead v. Van Leuven, 347 F. Supp. 505 (D. Idaho 1972).

Agreement to Waive Implied Warranties After Assignment.

A provision in a conditional sales contract that it might be assigned to a named bank without notice to purchaser, and when assigned should be free from any defense, counter-claim, or cross-complaint by the purchaser, is valid and will bar the defense of a breach of implied warranty. United States ex rel. Adm’r of Fed. Hous. Admin. v. Troy-Parisian, Inc., 115 F.2d 224 (9th Cir. 1940), cert. denied, 312 U.S. 699, 61 S. Ct. 739, 85 L. Ed. 1133 (1941).

Cost Bill.

The assignee of a cost bill takes the same subject to any right of offset against the bill existing at the time of the assignment. Northwestern & Pac. Hypotheek Bank v. Rauch, 8 Idaho 50, 66 P. 807 (1901).

Counterclaim.

Effect of Tender to Assignor.

Defendant, in action by endorsee of non-negotiable note, may file counterclaim alleging that commodities purchased were of no value. Security Fin. Co. v. Jensen Auto Co., 48 Idaho 376, 282 P. 88 (1929). Effect of Tender to Assignor.

Tender of amount of mortgage to mortgagee who has, without knowledge of mortgagor, assigned mortgage has no effect on rights of assignee to foreclose after default nor does such tender discharge mortgage lien. McClellan v. Davis, 45 Idaho 541, 263 P. 1002 (1928).

Fraud in Sale of Stock.

Cause of action for fraud in sale of stock is assignable. MacLeod v. Stelle, 43 Idaho 64, 249 P. 254 (1926).

Notice of Transfer.

Payment to assignor of non-negotiable note before notice of assignment discharges the obligation. Uhlig v. Diefendorf, 53 Idaho 676, 26 P.2d 801 (1933).

Am. Jur. 2d.

59 Am. Jur. 2d, Parties, §§ 29 to 32.

C.J.S.

ALR.

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 184; R.S., R.C., & C.L., § 4092; C.S., § 6636; I.C.A.,§ 5-303; am. 1939, ch. 184, § 1, p. 351, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho R. Civ. P. 17(a).

Cross References.

Married woman as defendant in summary proceedings for obtaining possession of real property,§ 6-308.

Compiler’s Notes.

This section repealed by implication R.S., § 4093 which provided that “when a married woman is a party her husband must be joined with her” except in certain cases.

The remainder of the act from which this section is taken, and which deals with the property rights of married women is compiled as§§ 32-903 to 32-905.

Community Property.

Where an action is brought by a married woman in her own name to foreclose a mortgage and defendant’s answer avers that the mortgaged property is community property and sets up an offset against the husband and asks to have him made a party plaintiff, it was error to refuse. Campbell v. Kerns, 13 Idaho 287, 90 P. 108 (1907).

Wife may sue for protection of community property where husband fails or neglects to institute proper actions. Muir v. Pocatello, 36 Idaho 532, 212 P. 345 (1922).

Contracts of Married Women.

Married woman may contract for improvements upon her separate property. Bassett v. Beam, 4 Idaho 106, 36 P. 501 (1894).

Former Law.

A married woman may contract debts for the use and benefit of her separate property, or for her own use and benefit, and, thereby, charge her separate property. Dernham v. Rowley, 4 Idaho 753, 44 P. 643 (1896). Former Law.

Under Rev. Stat. 1887, § 4093 (repealed by implication), husband was required to be joined with wife when she had a cause of action for personal injuries. Lindsay v. Oregon S. L. R.R., 13 Idaho 477, 90 P. 984 (1907) (see Compiler’s Notes, above).

Husband as Defendant.

Where plaintiff brought an action for damages to her person and character for torts committed against her during coverture, she may join her husband as a party defendant, if he participated in the wrongs, as constitution and statutes as a whole removed common law rule that a married woman could not sue her husband for wrongs committed by him against her person. Lorang v. Hays, 69 Idaho 440, 209 P.2d 733 (1949).

Wife’s Separate Property.

Husband is proper, though not necessary, party to action affecting wife’s separate property. McShane v. Quillin, 47 Idaho 542, 277 P. 554 (1929).

C.J.S.

§ 5-305. Husband and wife sued together.

If a husband and wife be sued together the wife may defend her own right, and if the husband neglect to defend she may defend for his right also.

History.

C.C.P. 1881, § 186; R.S., R.C., & C.L., § 4094; C.S., § 6638; I.C.A.,§ 5-305.

Disclaimer of Husband.

In an action against husband and wife relating to a water right appurtenant to real estate occupied by them as a residence, a disclaimer filed therein by the husband does not affect the right of the wife, and she may defend the action in her own name; the only effect of such disclaimer is that husband refuses to defend the action. Stowell v. Tucker, 7 Idaho 312, 62 P. 1033 (1900).

Failure to Serve Wife.

Wife is not bound by decree foreclosing mortgage on community property, though made a party defendant, but not served or not voluntarily appearing. Civils v. First Nat’l Bank, 41 Idaho 690, 241 P. 1023 (1925).

Testimony of Wife.

The wife may testify in action in regard to the contract sued on. Larson v. Carter, 14 Idaho 511, 94 P. 825 (1908).

Am. Jur. 2d.

C.J.S.

Cross References.

Appointment of guardians ad litem, Idaho R. Civ. P. 17(c).

Amendments.

The 2012 amendment, by ch. 20, deleted “or by a judge thereof, or a probate judge” from the end of the first sentence.

Application in General.

Infant must appear by guardian who must be made a party to the action and appear for his ward; infant’s representation by attorney is insufficient. Hutton v. Davis, 56 Idaho 231, 53 P.2d 345 (1935).

There must be a pending action in which the infant has been served with process before the appointment of a guardian ad litem; the court must acquire jurisdiction over the infant before this section can apply; the appointment of a guardian ad litem is a matter of procedure and not of jurisdiction. Trolinger v. Cluff, 56 Idaho 570, 57 P.2d 332 (1936).

Appointment after Trial.

The appointment of a guardian ad litem after the trial of a case and on the hearing of a motion for new trial, by an order of the trial court nunc pro tunc, is not a jurisdictional defect, but at most an irregularity which does not of itself vitiate the proceedings. Trask v. Boise King Placers Co., 26 Idaho 290, 142 P. 1073 (1914).

Effect of Failure to Appoint Guardian.

The effect of failure to appoint a guardian ad litem, where one is required by law, does not deprive the court of jurisdiction or power to act, and neither is the judgment rendered void; but a judgment rendered therein may be set aside thereafter on appropriate proceedings by the minor. Trolinger v. Cluff, 56 Idaho 570, 57 P.2d 332 (1936).

Immunities.

Since a guardian ad litem appointed under this section must act in the best interest of the child and not the parents, and it is absolutely essential that guardians are free to make such a determination without fear that a parent seeking a larger award or settlement will later sue the guardian for legal malpractice, guardians ad litem so appointed operate under the cloak of absolute quasi-judicial immunity; however, this does not leave the parties without recourse for they may object to the appointment or seek an appeal of a position adverse to that of the guardian or the court may reject the guardian’s recommendation or even remove a guardian who is not performing his duties. McKay v. Owens, 130 Idaho 148, 937 P.2d 1222 (1997).

Legal Capacity to Sue.

Any person of sound mind, lawful age, and under no restraint or legal disability has the “legal capacity to sue,” which means the right to come into court and that the plaintiff is free from general disability such as infancy or insanity, or if he sues as a representative that he possess the character in which he sues. American Home Benefit Ass’n v. United Am. Benefit Ass’n, 63 Idaho 754, 125 P.2d 1010 (1942).

A complaint is not demurrable on the ground that the plaintiff did not have the legal capacity to sue, where the complaint did not disclose that there was a legal disability of the plaintiff to prosecute the action, such as insanity, minority, or the like. American Home Benefit Ass’n v. United Am. Benefit Ass’n, 63 Idaho 754, 125 P.2d 1010 (1942).

Nonresident as Guardian.

It is not error to appoint a nonresident as guardian ad litem, although there is a general guardian, where the court is satisfied that the interest of the minor requires it. Pine v. Callahan, 8 Idaho 684, 71 P. 473 (1902).

Am. Jur. 2d.

59 Am. Jur. 2d, Parties, §§ 37, 38.

C.J.S.

57 C.J.S., Mental Health, § 300 et seq.

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 188; R.S., R.C., & C.L., § 4096; C.S., § 6640; I.C.A.,§ 5-307, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho R. Civ. P. 17(c).

Damages.

Three thousand dollars ($3,000) to twenty-one (21) year old single woman for second seduction by same defendant was not excessive. Kramlick v. Shuttleworth, 49 Idaho 424, 289 P. 74 (1930).

Evidence.

The trial court did not err in refusing to grant defendant’s motion for nonsuit and directed verdict, upon the ground that the evidence was insufficient to show seduction of plaintiff by defendant. Seamons v. Spackman, 81 Idaho 361, 341 P.2d 442 (1959).

Pregnancy.

The gravamen of the action for seduction, contemplated by this section, is not pregnancy, although pregnancy may be a consideration in the enhancement of damages. Seamons v. Spackman, 81 Idaho 361, 341 P.2d 442 (1959).

Am. Jur. 2d.

ALR.

Am. Jur. 2d.

§ 5-310. Action for injury to unmarried child.

The parents may maintain an action for the injury of an unmarried minor child, and for the injury of a minor child who was married at the time of his injury and whose spouse died as a result of the same occurrence and who leaves no issue, and a guardian for the injury of his ward, when such injury is caused by the wrongful act or neglect of another, but if either the father or mother be dead or has abandoned his or her family, the other is entitled to sue alone. Such action may be maintained against the person causing the injury, or if such person be employed by another person, who is responsible for his conduct, also against such other person.

History.

C.C.P. 1881, § 191; R.S. & R.C., § 4099; am. 1915, ch. 120, § 3, p. 266; reen. C.L., § 4099; C.S., § 6643; I.C.A.,§ 5-310; am. 1972, ch. 177, § 1, p. 444; am. 1984, ch. 158, § 1, p. 385.

Abandonment.

In the absence of a proceeding terminating the parent-child relationship, a sole surviving parent’s abandonment of a child will not, in and of itself, preclude maintenance of an action to recover for wrongful death; the fact of abandonment if found by a jury, may operate to mitigate the amount of damages recoverable. Black v. Reynolds, 109 Idaho 277, 707 P.2d 388 (1985), overruled on other grounds, Stewart v. Rice, 120 Idaho 504, 817 P.2d 170 (1991).

Where there has been a proceeding resulting in the termination of the parent-child relationship, an abandoning parent would have no right to recover for a child’s wrongful death regardless of whether the other parent was alive or dead, his or her own parental status having been legally extinguished. Black v. Reynolds, 109 Idaho 277, 707 P.2d 388 (1985), overruled on other grounds, Stewart v. Rice, 120 Idaho 504, 817 P.2d 170 (1991).

This section merely confers a preference to the non-abandoning parent to bring a wrongful death cause of action where both parents are alive; it does not deprive a sole surviving abandoning parent of a cause of action. Black v. Reynolds, 109 Idaho 277, 707 P.2d 388 (1985), overruled on other grounds, Stewart v. Rice, 120 Idaho 504, 817 P.2d 170 (1991). «Title 5»«Ch. 3»«§ 5-310»

Abandonment.

In the absence of a proceeding terminating the parent-child relationship, a sole surviving parent’s abandonment of a child will not, in and of itself, preclude maintenance of an action to recover for wrongful death; the fact of abandonment if found by a jury, may operate to mitigate the amount of damages recoverable. Black v. Reynolds, 109 Idaho 277, 707 P.2d 388 (1985), overruled on other grounds, Stewart v. Rice, 120 Idaho 504, 817 P.2d 170 (1991).

Where there has been a proceeding resulting in the termination of the parent-child relationship, an abandoning parent would have no right to recover for a child’s wrongful death regardless of whether the other parent was alive or dead, his or her own parental status having been legally extinguished. Black v. Reynolds, 109 Idaho 277, 707 P.2d 388 (1985), overruled on other grounds, Stewart v. Rice, 120 Idaho 504, 817 P.2d 170 (1991).

Amount of Recovery.

This section merely confers a preference to the non-abandoning parent to bring a wrongful death cause of action where both parents are alive; it does not deprive a sole surviving abandoning parent of a cause of action. Black v. Reynolds, 109 Idaho 277, 707 P.2d 388 (1985), overruled on other grounds, Stewart v. Rice, 120 Idaho 504, 817 P.2d 170 (1991). Amount of Recovery.

In action by parents to recover damages for injury to minor child, amount of damages recovered depends on the circumstances of the case and what is just. Hayward v. Yost, 72 Idaho 415, 242 P.2d 971 (1952).

In action for wrongful death of a minor child, the verdict in each case should be weighed against the circumstances peculiar to that case and the trial court should act to reduce jury verdict only when it is not just considering all the circumstances. Meissner v. Smith, 94 Idaho 563, 494 P.2d 567 (1972).

There is no special, discrete limitation as a matter of law upon recovery for the wrongful death of a child. Packard v. Joint Sch. Dist. No. 171, 104 Idaho 604, 661 P.2d 770 (Ct. App. 1983).

Contributory Negligence.

The contributory or comparative negligence of parents may be raised as a defense in a wrongful death action brought by parents of a deceased child. The principle behind the allowance of such a defense is that no one should be permitted to profit from his own wrong. Nelson v. Northern Leasing Co., 104 Idaho 185, 657 P.2d 482 (1983).

The negligence of the parents may be asserted as a defense in an action brought by the parents for the wrongful death of a child. Nelson v. Northern Leasing Co., 104 Idaho 185, 657 P.2d 482 (1983).

Elements of Damages.

In determination of damages to be awarded parents of injured minor child, amount of contributions child would have contributed to parents until majority, except for injury, and loss of protection, comfort, society and companionship are proper elements to be considered. Hayward v. Yost, 72 Idaho 415, 242 P.2d 971 (1952).

Instructions.

Instruction, in suit by parents to recover damages for brain injury of child, which stated that parents may be awarded a reasonable amount for any worry or mental distress they may have suffered by reason of injuries to child was error. Hayward v. Yost, 72 Idaho 415, 242 P.2d 971 (1952).

Where school district defending wrongful death action made no affirmative showing that the jury went beyond the trial judge’s instruction and improperly considered such elements as grief or mental anguish, and the record revealed no testimony specifically concerning grief or mental anguish, nor any arguments of counsel urging recovery for such factors, the trial court did not commit reversible error by refusing to give the supplementary instructions on exclusion of these elements which were requested by the school district. Packard v. Joint Sch. Dist. No. 171, 104 Idaho 604, 661 P.2d 770 (Ct. App. 1983).

Nature of Action.

Parental Immunity.

The actions authorized by this section and§ 5-311 are not actions arising from the “surviving” rights of a decedent, but rather are compensatory in character for the benefit of the named survivors. Volk v. Baldazo, 103 Idaho 570, 651 P.2d 11 (1982) (decision prior to 1984 amendment.). Parental Immunity.

Where plaintiff was a widow suing on a wrongful death action for loss of a child, she was not suing on behalf of the child; thus, defendant’s third party claim against plaintiff’s deceased husband’s estate for indemnity or contribution by virtue of the deceased’s alleged negligence was not barred by the doctrine of parental immunity. Schiess v. Bates, 107 Idaho 794, 693 P.2d 440 (1984).

Prenatal Injuries.

A cause of action will lie on behalf of a viable child who sustains prenatal injuries, but is subsequently born alive, if at the time of injury the fetus was viable. Volk v. Baldazo, 103 Idaho 570, 651 P.2d 11 (1982).

Under§ 5-311, viability marks the beginning of legal personhood, and the right to assert a cause of action for the wrongful death of a fetus is correspondingly limited to cases involving the death of a viable fetus. Santana v. Zilog, Inc., 878 F. Supp. 1373 (D. Idaho 1995), aff’d, 95 F.3d 780 (9th Cir. 1996).

Sufficiency of Complaint.

Complaint for death of minor aged 16, who drowned when his tractor overturned in a drain ditch when minor fell asleep, did not state a cause of action under this section where complaint failed to allege that death was due to long hours at night, though child had been employed to work on 12 hour shift at night. Shirts v. Shultz, 76 Idaho 463, 285 P.2d 479 (1955).

Type of Action.

The actions authorized by this section and§ 5-311 are not actions arising for the surviving rights of a decedent, but rather are compensatory and enacted for the benefit of the named survivors. Vulk v. Haley, 112 Idaho 855, 736 P.2d 1309 (1987).

Unborn Child.

Since the term “minor child” marks the upper age beyond which a parent’s cause of action may not extend under this section, parents have a right of action only if their child suffers wrongful death before reaching the age of 18 and a lower age limitation is neither implied nor necessary; therefore, an unborn viable child has legal existence and rights and is easily considered within the meaning of the term “minor child” and an action for wrongful death will lie on behalf of a viable unborn fetus who died of injuries and, hence, was not born alive. Volk v. Baldazo, 103 Idaho 570, 651 P.2d 11 (1982).

RESEARCH REFERENCES

Am. Jur. 2d.

C.J.S.

ALR.

Private owner’s liability to trespassing children for injuries sustained by sleighing, tobogganing, skiing, skating or otherwise sliding on his land. 19 A.L.R.3d 184.

Liability for injury or death of child social guest. 20 A.L.R.3d 1127.

Railroad’s liability for injury to or death of child climbing or playing on moving train other than as paying or proper passenger. 35 A.L.R.3d 9.

Liability of owner or operator of store or similar place of business for injury to child climbing or playing on furniture, fixtures, displays, or the like. 50 A.L.R.3d 1227.

Parent’s desertion, abandonment, or failure to support minor child as affecting right or measure of recovery for wrongful death of child. 53 A.L.R.3d 566.

Permitting child to walk to school unattended as contributory negligence of parents in action for injury or death of child. 62 A.L.R.3d 541.

Liability for injury or death of minor or other incompetent inflicted upon himself by gun made available by defendant. 75 A.L.R.3d 825.

Products liability: Toys and games. 95 A.L.R.3d 390.

Liability of one who sells gun to child for injury to third party. 4 A.L.R.4th 331.

Negligence of one parent contributing to injury or death of child as barring or reducing damages recoverable by other parent for losses suffered by other parent as result of injury or death of child. 26 A.L.R.4th 396.

Recovery of damages for grief or mental anguish resulting from death of child — modern cases. 45 A.L.R.4th 234.

Recovery of damages for loss of consortium resulting from death of child — modern status. 77 A.L.R.4th 411.

Cross References.

Consolidation of pending actions between same parties, Idaho R. Civ. P. 42(a). Death of wrongdoer, survival of action,§ 5-327.

Prior Laws.

Former§ 5-311, which comprised C.C.P. 1881, § 192; R.S., R.C., & C.L., § 4100; C.S., § 6644; I.C.A.,§ 5-311; am. 1972, ch. 177, § 2, p. 444, was repealed by S.L. 1984, ch. 158, § 2.

Amendments.

The 2010 amendment, by ch. 349, inserted “and subsection (2) of section 5-327, Idaho Code” in the introductory paragraph in subsection (2) and updated the statutory reference in paragraph (2)(a).

Burden of Proof.

To sustain an action for damages an heir must prove that the wrongful act or negligence of the defendant caused the injury or resulting death. Turpen v. Granieri, 133 Idaho 244, 985 P.2d 669 (1999).

Circumstances Subsequent to Wrongful Death.

Wrongful death actions are designed to reimburse heirs for the expectations of parental beneficence they would have received, had the decedent lived; this regime does not allow for consideration of financial and other circumstances that arise subsequent to the death of a parent who is survived by heirs, such as plaintiff’s remarriage subsequent to the loss of her husband. Westfall v. Caterpillar, Inc., 120 Idaho 918, 821 P.2d 973 (1991).

Condition Precedent.

This section contains a condition precedent, but the condition precedent does not apply to the expiration of the statute of limitations as to the decedent’s own claim. Castorena v. GE, 149 Idaho 609, 238 P.3d 209 (2010).

Decedent’s Negligence.

Plaintiffs can recover for wrongful death only when the wrongful act would have entitled the person injured to maintain an action if death had not ensued; thus, if the decedent’s negligence was not as great as that of the defendants, then decedent’s heirs would be entitled to recover for their loss reduced by the percentage of decedent’s negligence; however, where the decedent’s negligence is equal to or greater than the defendant’s negligence, then the decedent’s heirs are barred from recovery as would be the injured party had he survived. Bevan v. Vassar Farms, Inc., 117 Idaho 1038, 793 P.2d 711 (1990). Death of wrongdoer, survival of action,§ 5-327.

Prior Laws.

Former§ 5-311, which comprised C.C.P. 1881, § 192; R.S., R.C., & C.L., § 4100; C.S., § 6644; I.C.A.,§ 5-311; am. 1972, ch. 177, § 2, p. 444, was repealed by S.L. 1984, ch. 158, § 2.

Amendments.

The 2010 amendment, by ch. 349, inserted “and subsection (2) of section 5-327, Idaho Code” in the introductory paragraph in subsection (2) and updated the statutory reference in paragraph (2)(a).

Burden of Proof.

To sustain an action for damages an heir must prove that the wrongful act or negligence of the defendant caused the injury or resulting death. Turpen v. Granieri, 133 Idaho 244, 985 P.2d 669 (1999).

Circumstances Subsequent to Wrongful Death.

Wrongful death actions are designed to reimburse heirs for the expectations of parental beneficence they would have received, had the decedent lived; this regime does not allow for consideration of financial and other circumstances that arise subsequent to the death of a parent who is survived by heirs, such as plaintiff’s remarriage subsequent to the loss of her husband. Westfall v. Caterpillar, Inc., 120 Idaho 918, 821 P.2d 973 (1991).

Condition Precedent.

This section contains a condition precedent, but the condition precedent does not apply to the expiration of the statute of limitations as to the decedent’s own claim. Castorena v. GE, 149 Idaho 609, 238 P.3d 209 (2010).

Decedent’s Negligence.

Plaintiffs can recover for wrongful death only when the wrongful act would have entitled the person injured to maintain an action if death had not ensued; thus, if the decedent’s negligence was not as great as that of the defendants, then decedent’s heirs would be entitled to recover for their loss reduced by the percentage of decedent’s negligence; however, where the decedent’s negligence is equal to or greater than the defendant’s negligence, then the decedent’s heirs are barred from recovery as would be the injured party had he survived. Bevan v. Vassar Farms, Inc., 117 Idaho 1038, 793 P.2d 711 (1990). A trial court did not err when it aggregated the negligence of deceased daughter with that of her parents, in their wrongful death action against the manufacturer of a go-cart, and the court properly barred the parents’ recovery where the aggregated negligence was 50 percent. Woodburn v. Manco Prods., Inc., 137 Idaho 502, 50 P.3d 997 (2002).

Heirs.

“Heirs” in the context of this section refers to persons who are entitled to inherit the property of an intestate, according to the laws of intestate succession in effect as of the date of death. Schiess v. Bates, 107 Idaho 794, 693 P.2d 440 (1984).

Heirs are determined at the date of death for purposes of this section, and the later execution of a renunciation document by a widow renouncing inheritance of her husband’s one-half of the community to her children does not alter that fact. Schiess v. Bates, 107 Idaho 794, 693 P.2d 440 (1984).

Because the decedent’s own cause of action against an underinsured motorist abated upon her death, her personal representative, and heirs who were not insureds under the policy, were not entitled to payment for wrongful death, pursuant to her underinsured motorist coverage. Farm Bureau Mut. Ins. Co. v. Eisenman, 153 Idaho 549, 286 P.3d 185 (2012).

In General.

Idaho law allows a wrongful death action to be brought if the decedent could have maintained an action had he lived. Stevens v. Fleming, 116 Idaho 523, 777 P.2d 1196 (1989).

Pain and Suffering.

An action for pain and suffering does not survive the death of the injured party, and§ 32-906 does not provide that pain and suffering is community property rather than the separate property of the injured spouse. Evans v. Twin Falls County, 118 Idaho 210, 796 P.2d 87 (1990), cert. denied, 498 U.S. 1086, 111 S. Ct. 960, 112 L. Ed. 2d 1048 (1991).

Purpose.

A wrongful death action is allowed upon the theory that the wrongful death of the ancestor works a personal injury to his heirs, in that it deprives them of some pecuniary or other benefit which they would have received except for the death of the ancestor. Bevan v. Vassar Farms, Inc., 117 Idaho 1038, 793 P.2d 711 (1990).

Retroactivity.

The 1984 revision to this section, which for the first time enacted a statutory definition of “heirs” as used in the wrongful death statute, is not retroactive in application. Nebeker v. Piper Aircraft Corp., 113 Idaho 609, 747 P.2d 18 (1987).

Rights of Heirs.

If a defendant would not be liable for injuries to the decedent had death not ensued, then there is no basis for recovery by the decedent’s heirs; therefore, if a defendant’s conduct does not make him liable to an injured party, then that defendant cannot be held liable in the event of death for damages resulting from the same conduct; thus, there was no basis for recovery of damages by the heirs of decedent where 50 percent of the negligence was apportioned to decedent. Bevan v. Vassar Farms, Inc., 117 Idaho 1038, 793 P.2d 711 (1990). It is reasonable, in a wrongful death action, to bar the heirs’ recovery against a defendant if the deceased himself could not recover. Bevan v. Vassar Farms, Inc., 117 Idaho 1038, 793 P.2d 711 (1990).

Standing.

Subsection (1) of this section is construed to use “personal representative” to mean the personal representative of the decedent, not of the heirs; thus, an action may be maintained for wrongful death of a person by the decedent’s heirs or the decedent’s personal representative on behalf of the heirs. Hagy v. State, 137 Idaho 618, 51 P.3d 432 (Ct. App. 2002).

In a wrongful death case, an older brother to the decedents fell within the definition of an “heir,” under subsection (2)(b), provided the older brother was partly or wholly dependent on the decedents for support or services; however, that support did not extend to the emotional and social support that the older brother claimed as damages, and the older brother did not have standing to recover. O’Guin v. Bingham County, 139 Idaho 9, 72 P.3d 849 (2003).

Unborn Child.

Under this section, viability marks the beginning of legal personhood, and the right to assert a cause of action for the wrongful death of a fetus is correspondingly limited to cases involving the death of a viable fetus. Santana v. Zilog, Inc., 878 F. Supp. 1373 (D. Idaho 1995), aff’d, 95 F.3d 780 (9th Cir. 1996).

Idaho’s wrongful death statute did not support a cause of action for six nonviable fetuses worker miscarried while working at place of employment. Santana v. Zilog, Inc., 95 F.3d 780 (9th Cir. 1996).

Decisions Under Prior Law

Bar to Action.

The United States was not an “employer” within the meaning of the workmen’s [now worker’s] compensation act (see§ 72-101 et seq.) so as to bar an action under former similar section where a workman of the general contractors for a flood control project for the United States fell from a scaffold, and exemption of an “employer” from common law or statutory action for negligence did not apply. Kirk v. United States, 232 F.2d 763 (9th Cir. 1956).

Constitutionality.

This section created a new cause of action in favor of those who stand in greatest need of recovery, i.e., the decedent’s “heirs.” This legislative limitation on the number of plaintiffs who may bring an action is a reasonable exercise of legislative authority and bears a rational relationship to a legitimate state objective and, therefore, is not violative of the equal protection provisions of eitherIdaho Const., Art. I, § 13 or the United States Constitution. Nebeker v. Piper Aircraft Corp., 113 Idaho 609, 747 P.2d 18 (1987).

Construction.

In case the injury results in death, the heirs of deceased can recover only in case decedent could have recovered damages had he not been killed, but only injured. Northern Pac. Ry. v. Adams, 192 U.S. 440, 24 S. Ct. 408, 48 L. Ed. 513 (1904).

The construction of former similar statute by the Supreme Court of Idaho, with respect to the nature of the right of action created, is in accord with the accepted view of statutes similar to Lord Campbell’s act; the recovery is not for the benefit of the “estate” of the decedent; the heirs are the only beneficiaries and are not represented by the administratrix in a suit brought without their consent. Spokane & I.E.R.R. v. Whitley, 237 U.S. 487, 35 S. Ct. 655, 59 L. Ed. 1060 (1915).

The word “heirs” means such heirs as are entitled to inherit from deceased persons, under the statutes of descent and distribution. Little v. Ireland, 30 F. Supp. 653 (D. Idaho 1939); Whitley v. Spokane & I.E.R.R., 23 Idaho 642, 132 P. 121 (1913), aff’d, 237 U.S. 487, 35 S. Ct. 655, 59 L. Ed. 1060 (1915).

Where there are no heirs, the action cannot be maintained and any judgment obtained in such an action inures to the benefit of the “heirs” of the decedent, and in no case becomes a part of the assets of the estate of the deceased. Whitley v. Spokane & I.E.R.R., 23 Idaho 642, 132 P. 121 (1913), aff’d, 237 U.S. 487, 35 S. Ct. 655, 59 L. Ed. 1060 (1915). Heirs.

Bar to Action.

The United States was not an “employer” within the meaning of the workmen’s [now worker’s] compensation act (see§ 72-101 et seq.) so as to bar an action under former similar section where a workman of the general contractors for a flood control project for the United States fell from a scaffold, and exemption of an “employer” from common law or statutory action for negligence did not apply. Kirk v. United States, 232 F.2d 763 (9th Cir. 1956).

Constitutionality.

This section created a new cause of action in favor of those who stand in greatest need of recovery, i.e., the decedent’s “heirs.” This legislative limitation on the number of plaintiffs who may bring an action is a reasonable exercise of legislative authority and bears a rational relationship to a legitimate state objective and, therefore, is not violative of the equal protection provisions of eitherIdaho Const., Art. I, § 13 or the United States Constitution. Nebeker v. Piper Aircraft Corp., 113 Idaho 609, 747 P.2d 18 (1987).

Construction.

In case the injury results in death, the heirs of deceased can recover only in case decedent could have recovered damages had he not been killed, but only injured. Northern Pac. Ry. v. Adams, 192 U.S. 440, 24 S. Ct. 408, 48 L. Ed. 513 (1904).

The construction of former similar statute by the Supreme Court of Idaho, with respect to the nature of the right of action created, is in accord with the accepted view of statutes similar to Lord Campbell’s act; the recovery is not for the benefit of the “estate” of the decedent; the heirs are the only beneficiaries and are not represented by the administratrix in a suit brought without their consent. Spokane & I.E.R.R. v. Whitley, 237 U.S. 487, 35 S. Ct. 655, 59 L. Ed. 1060 (1915).

The word “heirs” means such heirs as are entitled to inherit from deceased persons, under the statutes of descent and distribution. Little v. Ireland, 30 F. Supp. 653 (D. Idaho 1939); Whitley v. Spokane & I.E.R.R., 23 Idaho 642, 132 P. 121 (1913), aff’d, 237 U.S. 487, 35 S. Ct. 655, 59 L. Ed. 1060 (1915).

Where there are no heirs, the action cannot be maintained and any judgment obtained in such an action inures to the benefit of the “heirs” of the decedent, and in no case becomes a part of the assets of the estate of the deceased. Whitley v. Spokane & I.E.R.R., 23 Idaho 642, 132 P. 121 (1913), aff’d, 237 U.S. 487, 35 S. Ct. 655, 59 L. Ed. 1060 (1915). Former similar section was construed to have the same force and effect as if it had expressly provided that those claiming under decedent may recover only when the act would have entitled the person injured to recover had death not ensued. Helgeson v. Powell, 54 Idaho 667, 34 P.2d 957 (1934).

The right to recover for a death caused by the wrongful act or negligence of another is statutory. Hepp v. Ader, 64 Idaho 240, 130 P.2d 859 (1942).

The action created by former similar section is not a survival action, but an action, the right to prosecute which did not accrue in the lifetime of decedent but only upon her death; hence, in the case of the deceased being a married woman, contention that an action in tort can not be maintained by a wife against her husband need not be considered. Russell v. Cox, 65 Idaho 534, 148 P.2d 221 (1944).

The cause of action which accrues to the injured party during his lifetime may be prosecuted or compromised by the injured party and the receipts inure to the benefit of his estate; whereas the right of action which accrues on the death of the injured party can only be prosecuted by her heirs or personal representatives and does not benefit the estate. Russell v. Cox, 65 Idaho 534, 148 P.2d 221 (1944).

Former similar statute created a new right of action with a different measure of damages from anything known at common law. Hughes v. Hudelson, 67 Idaho 10, 169 P.2d 712 (1946).

Contributory Negligence.

“Last clear chance” doctrine applied. Short v. Boise Valley Traction Co., 38 Idaho 593, 225 P. 398 (1924).

In action by husband against physician for malpractice resulting in death of wife, plaintiff’s contributory negligence in not notifying defendant immediately of marked change in deceased’s condition is a defense. Sprouse v. Magee, 46 Idaho 622, 269 P. 993 (1928).

The contributory negligence of a deceased is a bar to recovery in an action for his wrongful death. Clark v. Foster, 87 Idaho 134, 391 P.2d 853 (1964).

The contributory negligence of a father in the death of the children’s mother does not bar the children from recovering for her wrongful death. Clark v. Foster, 87 Idaho 134, 391 P.2d 853 (1964).

Damages in General.

The expression “as under the circumstances of the case, may be just” means such circumstances as are properly shown to the jury by the evidence under the pleadings, and the jury should be so instructed; the jury should not be permitted to assess damages on their own ideas and notions of what the “circumstances of the case” are, regardless of the pleadings and proof. Holt v. Spokane & Inland Empire R.R., 3 Idaho 703, 35 P. 39 (1893).

It is not error for the court to instruct the jury that in considering the amount of pecuniary damages sustained by the plaintiff they may take into consideration “the degree of intimacy existing between the father and the child and the loss of companionship if such be shown”; moreover the jury is not limited to a precise and specific pecuniary amount measured by the direct evidence given in the case, but are at liberty to take into consideration, guided by the evidence given in the case, the intrinsic probabilities that damages have been sustained by and on account of the loss of bodily care or intellectual culture or moral training which the parent of the deceased had previously supplied or bestowed. Anderson v. Great N.R.R., 15 Idaho 513, 99 P. 91 (1908). In an action by father for the wrongful death of a son seven years of age, caused by collision on the railway, where it is admitted that the death occurred through the negligence and carelessness of the servants of the defendant, the value of the child’s services to the father during the period of his minority should be ascertained by the jury from the evidence introduced and by using their own judgment, common sense and discretion, as an estimate of such services must, of necessity, to a considerable extent be a matter of opinion. Golden v. Spokane & Inland Empire R.R., 20 Idaho 526, 118 P. 1076 (1911).

If it be shown heirs have suffered injury in loss of companionship of deceased, such loss may be considered by jury, even though heirs are not relatives in direct line. Kelly v. Lemhi Irrigation & Orchard Co., 30 Idaho 778, 168 P. 1076 (1917).

Recovery can be had for medical and funeral expenses which have been paid by the beneficiaries, or for which they are liable, provided reasonable value thereof is shown, and provided it appears that the amounts charged are reasonable. Jutila v. Frye, 8 F.2d 608 (9th Cir. 1925).

While damages may not be allowed for mental suffering or as solatium for wounded feelings, they may be allowed for loss of companionship, protection, bodily care, intellectual culture or moral training provided it sufficiently appears that pecuniary damages resulted from such loss. Wyland v. Twin Falls Canal Co., 48 Idaho 789, 285 P. 676 (1930).

In parents’ action for death of adult daughter, jury must estimate damages as best they can by reasonable probabilities, under circumstances. Butler v. Townsend, 50 Idaho 542, 298 P. 375 (1931).

Under former similar statute, a recovery could not be had for grief and anguish of survivors, but a loss for society, companionship, comfort, protection, guidance, advice, and intellectual training may be recovered. Hepp v. Ader, 64 Idaho 240, 130 P.2d 859 (1942).

In an action for death, it is the duty of the jury to fix the amount of damages to be awarded. Hepp v. Ader, 64 Idaho 240, 130 P.2d 859 (1942).

The Supreme Court will disturb the amount of damages fixed by jury only in case of abuse of discretion on the part of the jury when such is clearly apparent. Hepp v. Ader, 64 Idaho 240, 130 P.2d 859 (1942).

Elements entering into the determination of damages for death of a child include: contributions which the parents might reasonably have expected to receive from the earnings of the deceased during his minority; and comfort, society and companionship deceased would have afforded to them had he lived; but grief and anguish are not to be considered. Checketts v. Bowman, 70 Idaho 463, 220 P.2d 682 (1950), overruled in part, Meissner v. Smith, 94 Idaho 563, 494 P.2d 567 (1972).

In a wrongful death action filed in Idaho arising out of an accident in Oregon, the amount of recovery was governed by the Oregon statute. Barnes v. Union Pac. R.R., 139 F. Supp. 198 (D. Idaho 1956).

Where the trial judge did not abuse his discretion in refusing to interfere with a jury’s award of $60,000 in a wrongful death case and where no excess appeared as a matter of law, the refusal of the trial judge to reduce the award or grant a new trial on damages was not open to review. Union Pac. R.R. v. Jarrett, 381 F.2d 597 (9th Cir. 1967).

The classification in§ 5-327, entitling those suing the tortfeasor to recover full damages awarded by the trier of fact and limiting the damages to $10,000 for those suing the tortfeasor’s representative, was not in conflict with equal protection clause. Stucki v. Loveland, 94 Idaho 621, 495 P.2d 571 (1972) (decision prior to 1971 amendment of§ 5-327). An award of $35,000 for the wrongful death of an eleven-year-old minor child was not excessive as a matter of law. Kinney v. Smith, 95 Idaho 328, 508 P.2d 1234 (1973).

A survival action is for the damages the deceased suffered and could have sued for had he survived, while a wrongful death action, in contrast, involves the damages suffered by the heirs of the decedent because of his death. Gavica v. Hanson, 101 Idaho 58, 608 P.2d 861 (1980), overruled in part, Sterling v. Bloom, 111 Idaho 211, 723 P.2d 755 (1986).

Damages in Particular Cases.

Recovery of $1,500 by a husband for the death of his wife was not excessive. Jutila v. Frye, 8 F.2d 608 (9th Cir. 1925).

Damages of $5,000 and expenses caused by injury to son 18 years of age resulting in his death was not excessive. Shaddy v. Daley, 58 Idaho 536, 76 P.2d 279 (1937).

Jury was justified in awarding $15,000 general damages, and funeral expenses, in suit by widow and children. Manion v. Waybright, 59 Idaho 643, 86 P.2d 181 (1938).

Award of $23,535 for the father of three minor children, where the father had thirty-one and seven-tenths (31 7/10) years’ expectancy of life, was able-bodied, industrious, and thirty-six and a half (36 1/2) years old, and earned $0.55 an hour, was not excessive for his death. Lebak v. Nelson, 62 Idaho 96, 107 P.2d 1054 (1940).

A verdict of $10,000 to the husband for the wrongful death of a 54-year-old wife, who had been so crippled by rheumatism that she was unable to walk, work, or dress herself, is not excessive. Hepp v. Ader, 64 Idaho 240, 130 P.2d 859 (1942).

Defenses Precluding Recovery.

In suit by widow and children of deceased construction worker who was killed when he fell during construction of Lucky Peak Dam on Boise River, his failure to fasten his safety belt, which would have precluded his recovery had he not been killed, precluded recovery for his death by his heirs. Kirk v. United States, 161 F. Supp. 722 (D. Idaho 1958), aff’d, 270 F.2d 110 (9th Cir 1959).

An heir cannot recover under the Idaho Wrongful Death Statute, unless the deceased himself could have recovered had he not been killed. Kirk v. United States, 161 F. Supp. 722 (D. Idaho 1958), aff’d, 270 F.2d 110 (9th Cir 1959).

In a wrongful death action in which plaintiffs alleged that their son died as a result of the reckless and negligent conduct of defendant, who had engaged the decedent to descend into a drill shaft to make repairs to broken equipment, the trial court correctly instructed the jury that the plaintiffs could not recover damages unless the decedent could have recovered for his injuries had he survived. Anderson v. Gailey, 97 Idaho 813, 555 P.2d 144 (1976).

Equal Protection.

Because the right to recover for wrongful death is not a fundamental right, a classification scheme imposed under a wrongful death statute must merely be shown to bear some rational relationship to a permissible state objective in order to meet equal protection requirements. Everett v. Trunnell, 105 Idaho 787, 673 P.2d 387 (1983).

The state objective under the wrongful death statute was to change the common law to allow recovery for wrongful death, while at the same time limiting that recovery to those persons most likely to suffer a loss such as a surviving wife and child; this limitation on the statutory cause of action is reasonable and bears a rational relationship to a legitimate state objective. Accordingly, parents who were denied right to sue for wrongful death of son were not denied equal protection of the laws. Everett v. Trunnell, 105 Idaho 787, 673 P.2d 387 (1983). An award of $35,000 for the wrongful death of an eleven-year-old minor child was not excessive as a matter of law. Kinney v. Smith, 95 Idaho 328, 508 P.2d 1234 (1973).

A survival action is for the damages the deceased suffered and could have sued for had he survived, while a wrongful death action, in contrast, involves the damages suffered by the heirs of the decedent because of his death. Gavica v. Hanson, 101 Idaho 58, 608 P.2d 861 (1980), overruled in part, Sterling v. Bloom, 111 Idaho 211, 723 P.2d 755 (1986).

Damages in Particular Cases.

Recovery of $1,500 by a husband for the death of his wife was not excessive. Jutila v. Frye, 8 F.2d 608 (9th Cir. 1925).

Damages of $5,000 and expenses caused by injury to son 18 years of age resulting in his death was not excessive. Shaddy v. Daley, 58 Idaho 536, 76 P.2d 279 (1937).

Jury was justified in awarding $15,000 general damages, and funeral expenses, in suit by widow and children. Manion v. Waybright, 59 Idaho 643, 86 P.2d 181 (1938).

Award of $23,535 for the father of three minor children, where the father had thirty-one and seven-tenths (31 7/10) years’ expectancy of life, was able-bodied, industrious, and thirty-six and a half (36 1/2) years old, and earned $0.55 an hour, was not excessive for his death. Lebak v. Nelson, 62 Idaho 96, 107 P.2d 1054 (1940).

A verdict of $10,000 to the husband for the wrongful death of a 54-year-old wife, who had been so crippled by rheumatism that she was unable to walk, work, or dress herself, is not excessive. Hepp v. Ader, 64 Idaho 240, 130 P.2d 859 (1942).

Defenses Precluding Recovery.

In suit by widow and children of deceased construction worker who was killed when he fell during construction of Lucky Peak Dam on Boise River, his failure to fasten his safety belt, which would have precluded his recovery had he not been killed, precluded recovery for his death by his heirs. Kirk v. United States, 161 F. Supp. 722 (D. Idaho 1958), aff’d, 270 F.2d 110 (9th Cir 1959).

An heir cannot recover under the Idaho Wrongful Death Statute, unless the deceased himself could have recovered had he not been killed. Kirk v. United States, 161 F. Supp. 722 (D. Idaho 1958), aff’d, 270 F.2d 110 (9th Cir 1959).

In a wrongful death action in which plaintiffs alleged that their son died as a result of the reckless and negligent conduct of defendant, who had engaged the decedent to descend into a drill shaft to make repairs to broken equipment, the trial court correctly instructed the jury that the plaintiffs could not recover damages unless the decedent could have recovered for his injuries had he survived. Anderson v. Gailey, 97 Idaho 813, 555 P.2d 144 (1976).

Equal Protection.

Because the right to recover for wrongful death is not a fundamental right, a classification scheme imposed under a wrongful death statute must merely be shown to bear some rational relationship to a permissible state objective in order to meet equal protection requirements. Everett v. Trunnell, 105 Idaho 787, 673 P.2d 387 (1983).

Free Passenger on Railroad Train.

The state objective under the wrongful death statute was to change the common law to allow recovery for wrongful death, while at the same time limiting that recovery to those persons most likely to suffer a loss such as a surviving wife and child; this limitation on the statutory cause of action is reasonable and bears a rational relationship to a legitimate state objective. Accordingly, parents who were denied right to sue for wrongful death of son were not denied equal protection of the laws. Everett v. Trunnell, 105 Idaho 787, 673 P.2d 387 (1983). Free Passenger on Railroad Train.

The death of a free passenger on a railway train, not due to omission on the part of the railroad of any duty owing to the deceased, is not “wrongful” or “negligent” within the meaning of this section and does not authorize an action by the heirs against the railroad. Northern Pac. Ry. v. Adams, 192 U.S. 440, 24 S. Ct. 408, 48 L. Ed. 513 (1904).

Heirs.

The right of children to bring wrongful death actions before the adoption in 1971 of the Uniform Probate Code was based on their right to succeed to the decedent’s estate under the laws of intestate succession in effect as of the date of death. The legislature, in enacting the Uniform Probate Code, intended that the wrongful death statute be applied in the same manner as it always had been, that is “heirs” would be determined by reference to the intestate succession provision in effect at the time of death. Nebeker v. Piper Aircraft Corp., 113 Idaho 609, 747 P.2d 18 (1987).

The term “heirs,” as used in this section as it read prior to the revision in 1984, is defined to mean those who would take under the intestate provisions of the probate code in effect at the time of the decedent’s death. Nebeker v. Piper Aircraft Corp., 113 Idaho 609, 747 P.2d 18 (1987).

In General.

Statutes authorizing actions for wrongful death are remedial in nature, designed to alleviate the harsh rule of common law that if an injured person died, his cause of action ceased to exist. Volk v. Baldazo, 103 Idaho 570, 651 P.2d 11 (1982).

The right of a person to recover for the wrongful death of another is statutory, and a person seeking to recover must qualify under the statute. Everett v. Trunnell, 105 Idaho 787, 673 P.2d 387 (1983).

Pain and Suffering.

Since pain and suffering are personal to the deceased and are not damages suffered by the survivors, an action for pain and suffering under this section does not survive death. Vulk v. Haley, 112 Idaho 855, 736 P.2d 1309 (1987).

Parents of Minor Child.

In action by parents to recover damages for injury to minor child, amount of damages recovered depends on the circumstances of the case and what is just. Hayward v. Yost, 72 Idaho 415, 242 P.2d 971 (1952).

Parties Defendant.

A railroad corporation is liable for damages to employee injured through the negligence of its agents or servants who are invested with a controlling and superior duty in the management of the business of the corporation. Palmer v. Utah & N.R.R., 2 Idaho 315, 13 P. 425 (1887).

Free Passenger on Railroad Train.

Where, at the time of the accident driver of automobile was neither an agent, employee nor servant of a specific company, but was merely driving toward a town in an effort to report for work and the use and operation of his automobile in that effort was entirely his choice and under his complete control, he was not a person employed by another person who was responsible for his conduct within the wrongful death statute; a prospective employer is not liable for any negligence on the part of such driver in the operation of his car while driving toward the place of intended employment. Lallatin v. Terry, 81 Idaho 238, 340 P.2d 112 (1959). Free Passenger on Railroad Train.

The death of a free passenger on a railway train, not due to omission on the part of the railroad of any duty owing to the deceased, is not “wrongful” or “negligent” within the meaning of this section and does not authorize an action by the heirs against the railroad. Northern Pac. Ry. v. Adams, 192 U.S. 440, 24 S. Ct. 408, 48 L. Ed. 513 (1904).

Heirs.

The right of children to bring wrongful death actions before the adoption in 1971 of the Uniform Probate Code was based on their right to succeed to the decedent’s estate under the laws of intestate succession in effect as of the date of death. The legislature, in enacting the Uniform Probate Code, intended that the wrongful death statute be applied in the same manner as it always had been, that is “heirs” would be determined by reference to the intestate succession provision in effect at the time of death. Nebeker v. Piper Aircraft Corp., 113 Idaho 609, 747 P.2d 18 (1987).

The term “heirs,” as used in this section as it read prior to the revision in 1984, is defined to mean those who would take under the intestate provisions of the probate code in effect at the time of the decedent’s death. Nebeker v. Piper Aircraft Corp., 113 Idaho 609, 747 P.2d 18 (1987).

In General.

Statutes authorizing actions for wrongful death are remedial in nature, designed to alleviate the harsh rule of common law that if an injured person died, his cause of action ceased to exist. Volk v. Baldazo, 103 Idaho 570, 651 P.2d 11 (1982).

The right of a person to recover for the wrongful death of another is statutory, and a person seeking to recover must qualify under the statute. Everett v. Trunnell, 105 Idaho 787, 673 P.2d 387 (1983).

Pain and Suffering.

Since pain and suffering are personal to the deceased and are not damages suffered by the survivors, an action for pain and suffering under this section does not survive death. Vulk v. Haley, 112 Idaho 855, 736 P.2d 1309 (1987).

Parents of Minor Child.

In action by parents to recover damages for injury to minor child, amount of damages recovered depends on the circumstances of the case and what is just. Hayward v. Yost, 72 Idaho 415, 242 P.2d 971 (1952).

Parties Defendant.

A railroad corporation is liable for damages to employee injured through the negligence of its agents or servants who are invested with a controlling and superior duty in the management of the business of the corporation. Palmer v. Utah & N.R.R., 2 Idaho 315, 13 P. 425 (1887).

Parties Plaintiff.

Where, at the time of the accident driver of automobile was neither an agent, employee nor servant of a specific company, but was merely driving toward a town in an effort to report for work and the use and operation of his automobile in that effort was entirely his choice and under his complete control, he was not a person employed by another person who was responsible for his conduct within the wrongful death statute; a prospective employer is not liable for any negligence on the part of such driver in the operation of his car while driving toward the place of intended employment. Lallatin v. Terry, 81 Idaho 238, 340 P.2d 112 (1959). Parties Plaintiff.

Guardians of minor children of deceased employee have right to maintain action against third person. Workmen’s Comp. Exch. v. Chicago, M., St. P. & Pac. R.R., 45 F.2d 885 (D. Idaho 1930).

The fact that the wife predeceased the husband did not preclude a daughter as wife’s “heir” from recovering for wife’s death, under this section, on the theory that immediately on the wife’s death, the right of action was given to the husband, under the community property laws, and that such right of action was completely extinguished by the husband’s subsequent death. Little v. Ireland, 30 F. Supp. 653 (D. Idaho 1939).

A 33-year-old daughter was not entitled to recover damages for the death of her 54-year-old mother, for whose death the father had recovered $10,000, where the daughter was married, lived with her own family, and there was no showing of a single visit by the daughter at the maternal home or of the relation existing between the daughter and the mother. Hepp v. Ader, 64 Idaho 240, 130 P.2d 859 (1942).

Where mother and husband were the only heirs of deceased, who was killed by husband, the mother was entitled to prosecute the action under this section. Russell v. Cox, 65 Idaho 534, 148 P.2d 221 (1944).

A foreign administratrix cannot bring a wrongful death action in Idaho, since only residents of the state can serve as administrator or administratrix in Idaho. Barnes v. Union Pac. R.R., 139 F. Supp. 198 (D. Idaho 1956).

As the Idaho death statute is a new right of action to a designated class of persons, i.e., the decedent’s heirs or personal representatives, the determination of who must bring the action depends upon substantive law and in a diversity action in federal district court the determination whether a third person was an indispensable party plaintiff to such action would have to be determined by the law of Idaho. Campbell v. Pacific Fruit Express Co., 148 F. Supp. 209 (D. Idaho 1957).

Since the right of action is not given to the decedent’s estate, but is granted only to his heirs, denial to executor of right of recovery was not a deprival of equal protection of the law. Moon v. Bullock, 65 Idaho 594, 151 P.2d 765 (1944), overruled on other grounds, Doggett v. Boiler Eng’r & Supply Co., 93 Idaho 890, 477 P.2d 511 (1970).

Where the twenty-year-old decedent was an adult under the 1972 probate law, his wife and minor child were the proper parties to bring suit under this section. Harrigfeld v. District Court of Seventh Judicial Dist., 95 Idaho 540, 511 P.2d 822 (1973).

Only those who qualify as “heirs” under the intestate succession statute are proper parties plaintiff in wrongful death actions under this section. Nebeker v. Piper Aircraft Corp., 113 Idaho 609, 747 P.2d 18 (1987).

Pleading, Proof, Practice.

A complaint under former similar statute was not obnoxious to a general demurrer because it failed to show whether the deceased was a minor or a major. Palmer v. Utah & N.R.R., 2 Idaho 315, 13 P. 425 (1887). It is not necessary for husband, wife, parent or child to plead or prove damages arising from the loss of services, food, clothing, shelter, or anything else which may be measured in dollars and cents, in an action for wrongful death of a spouse, a parent, or a child. Hepp v. Ader, 64 Idaho 240, 130 P.2d 859 (1942).

Where the complaint did not allege that husband suing for death of his wife, was her sole heir, and objection on that ground was not interposed by motion, demurrer, or answer, it is waived. Jutila v. Frye, 8 F.2d 608 (9th Cir. 1925).

The cause of action arises out of the same state of facts, whether prosecuted by the injured party during his lifetime or by his heirs after his death; but the heirs must prove the additional fact that the decedent died as a result of the wrongful or negligent act. Russell v. Cox, 65 Idaho 534, 148 P.2d 221 (1944).

In action to recover for the death of another caused by accident, the usual rule of preponderance of evidence prevails. Hughes v. Hudelson, 67 Idaho 10, 169 P.2d 712 (1946).

In action to recover for death of guest passenger the question of whether the driving of owner was reckless is for jury. Hughes v. Hudelson, 67 Idaho 10, 169 P.2d 712 (1946).

In a wrongful death action against automobile dealer and automobile manufacturer based on alleged defects in automobile, the plaintiffs were required to prove that one or both of the defendants were guilty of tortious conduct, and allegations of implied warranties were not pertinent, but facts relating to the sale were pertinent. Sugai v. GMC, 130 F. Supp. 101 (D. Idaho 1955).

Punitive Damages.

The statutory language “such damages may be given as under all the circumstances of the case may be just” permits proof and allowance of punitive damages. Gavica v. Hanson, 101 Idaho 58, 608 P.2d 861 (1980), overruled in part, Sterling v. Bloom, 111 Idaho 211, 723 P.2d 755 (1986).

Settlement Not Including Nonparty Heirs.

Where defendants in wrongful death action under this section voluntarily settled with plaintiff-husband of decedent with full knowledge of the existence of parents of decedent as other nonparty heirs, defendants waived the right to insist upon a single action joined in by all the heirs, and parents could still maintain action. Hogan v. Hermann, 101 Idaho 893, 623 P.2d 900 (1980).

Settlement Not in Trust for Later Claimant.

Where defendants in wrongful death action under this section settled claim of decedent’s husband with full knowledge of nonparty potential claimants and where release and cover letter specified that only husband’s claim was being settled, husband’s personal settlement recovery is not held in express or implied trust for the benefit of claimants who file later wrongful death action. Hogan v. Hermann, 101 Idaho 893, 623 P.2d 900 (1980).

Statute of Limitations.

The “occurrence, act or omission” which§ 5-219 defines as the accrual of a cause of action for wrongful death refers to the death of the person, caused by the wrongful acts of another, and the running of the statute of limitations on the wrongful death cause of action begins from the date of death. Chapman v. Cardiac Pacemakers, Inc., 105 Idaho 785, 673 P.2d 385 (1983). It is not necessary for husband, wife, parent or child to plead or prove damages arising from the loss of services, food, clothing, shelter, or anything else which may be measured in dollars and cents, in an action for wrongful death of a spouse, a parent, or a child. Hepp v. Ader, 64 Idaho 240, 130 P.2d 859 (1942).

Where the complaint did not allege that husband suing for death of his wife, was her sole heir, and objection on that ground was not interposed by motion, demurrer, or answer, it is waived. Jutila v. Frye, 8 F.2d 608 (9th Cir. 1925).

The cause of action arises out of the same state of facts, whether prosecuted by the injured party during his lifetime or by his heirs after his death; but the heirs must prove the additional fact that the decedent died as a result of the wrongful or negligent act. Russell v. Cox, 65 Idaho 534, 148 P.2d 221 (1944).

In action to recover for the death of another caused by accident, the usual rule of preponderance of evidence prevails. Hughes v. Hudelson, 67 Idaho 10, 169 P.2d 712 (1946).

In action to recover for death of guest passenger the question of whether the driving of owner was reckless is for jury. Hughes v. Hudelson, 67 Idaho 10, 169 P.2d 712 (1946).

In a wrongful death action against automobile dealer and automobile manufacturer based on alleged defects in automobile, the plaintiffs were required to prove that one or both of the defendants were guilty of tortious conduct, and allegations of implied warranties were not pertinent, but facts relating to the sale were pertinent. Sugai v. GMC, 130 F. Supp. 101 (D. Idaho 1955).

Punitive Damages.

The statutory language “such damages may be given as under all the circumstances of the case may be just” permits proof and allowance of punitive damages. Gavica v. Hanson, 101 Idaho 58, 608 P.2d 861 (1980), overruled in part, Sterling v. Bloom, 111 Idaho 211, 723 P.2d 755 (1986).

Settlement Not Including Nonparty Heirs.

Where defendants in wrongful death action under this section voluntarily settled with plaintiff-husband of decedent with full knowledge of the existence of parents of decedent as other nonparty heirs, defendants waived the right to insist upon a single action joined in by all the heirs, and parents could still maintain action. Hogan v. Hermann, 101 Idaho 893, 623 P.2d 900 (1980).

Settlement Not in Trust for Later Claimant.

Where defendants in wrongful death action under this section settled claim of decedent’s husband with full knowledge of nonparty potential claimants and where release and cover letter specified that only husband’s claim was being settled, husband’s personal settlement recovery is not held in express or implied trust for the benefit of claimants who file later wrongful death action. Hogan v. Hermann, 101 Idaho 893, 623 P.2d 900 (1980).

Statute of Limitations.

Type of Action.

The “occurrence, act or omission” which§ 5-219 defines as the accrual of a cause of action for wrongful death refers to the death of the person, caused by the wrongful acts of another, and the running of the statute of limitations on the wrongful death cause of action begins from the date of death. Chapman v. Cardiac Pacemakers, Inc., 105 Idaho 785, 673 P.2d 385 (1983). Type of Action.

The actions authorized by§ 5-310 and this section are not actions arising for the surviving rights of a decedent, but rather are compensatory and enacted for the benefit of the named survivors. Vulk v. Haley, 112 Idaho 855, 736 P.2d 1309 (1987).

Worker’s Compensation.

Workmen’s [now worker’s] compensation law (see§ 72-101 et seq.) withdrawing all phases of workmen’s [now worker’s] compensation cases from private controversy precluded parents from recovering under this section from deceased son’s employer, notwithstanding they could not recover workmen’s [now worker’s] compensation because they were not “dependents” within the meaning of the workmen’s [now worker’s] compensation law. Stample v. Idaho Power Co., 92 Idaho 763, 450 P.2d 610 (1969).

Am. Jur. 2d.

C.J.S.

ALR.

Hospital’s liability for personal injury or death of doctor, nurse, or attendant. 1 A.L.R.3d 1036.

Liability of social club for injury to death of nonmember. 15 A.L.R.3d 1013.

Master’s liability for injury to or death of person, or damage to property, resulting from fire allegedly caused by servant’s smoking. 20 A.L.R.3d 893.

Liability of owner of private residential swimming pool for injury or death occasioned thereby. 20 A.L.R.3d 1395.

Owner’s or keeper’s liability for personal injury or death inflicted by wild animal. 21 A.L.R.3d 603; 92 A.L.R.3d 832; 66 A.L.R. Fed. 305.

Right to maintain direct action against fellow employee for injury or death covered by workmen’s compensation. 21 A.L.R.3d 845; 57 A.L.R.4th 888.

Uninsured motorist clause; coverage of claim for wrongful death of insured. 26 A.L.R.3d 935.

Brothers and sisters of deceased as beneficiaries within state wrongful death statute. 31 A.L.R.3d 379.

Right of action for injury to or death of woman who consented to illegal abortion. 36 A.L.R.3d 630.

Liability of prison authorities for injury to prisoner directly caused by assault by other prisoner. 41 A.L.R.3d 1021.

Druggist’s civil liability for suicide consummated with drugs furnished by him. 58 A.L.R.3d 828.

Action for death of stepparent by or for benefit of stepchild. 68 A.L.R.3d 1220.

Remarriage of surviving parent as affecting action for wrongful death of child. 69 A.L.R.3d 1038. Right to amend pending personal injury action by including action for wrongful death after statute of limitations has run against independent death action. 71 A.L.R.3d 933.

Civil liability of prison or jail authorities for self-inflicted injury or death of prisoner. 79 A.L.R.3d 1210.

Minority of surviving children as tolling limitation period in state wrongful death action. 85 A.L.R.3d 162.

Governmental liability from operation of zoo. 92 A.L.R.3d 832.

Assignability of proceeds of claim for personal injury or death. 33 A.L.R.4th 82.

Willful, wanton, or reckless conduct of coemployee as ground of liability despite bar of workers’ compensation law. 57 A.L.R.4th 888.

Who, other than parent, may recover for loss of consortium on death of minor child. 84 A.L.R.5th 687.

Action by or on Behalf of Minor Child, or Presumed Minor Child, for Loss of Parental Consortium — General Considerations. 4 A.L.R.7th 1.

Action by or on Behalf of Minor Child, or Presumed Minor Child, for Loss of Parental Consortium — Proof, Evidentiary Considerations, Limits of Recovery, Parties. 5 A.L.R.7th 4.

Action by or on Behalf of Minor Child, or Presumed Minor Child, for Loss of Parental Consortium — Impact of Other Legal Concepts and Theories of Recovery. 6 A.L.R.7th 4.

Loss of Sibling Consortium. 9 A.L.R.7th 1.

Compiler’s Notes.

These sections, which comprised C.C.P. 1881, §§ 193 — 199; R.S., R.C., & C.L., §§ 4101 — 4107; C.S., §§ 6645 — 6651; I.C.A.,§§ 5-312 — 5-318 were repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho Civil Procedure Rules 19 and 20.

Cross References.

Action to recover land does not abate by transfer of defendant’s interest,§ 6-409.

In case of death of defendant pending suit the claim must be presented to the executor or administrator,§ 15-3-803.

Judgment after death,§ 10-1106.

Personal injuries, death of wrongdoer, survival of action,§ 5-327.

Actions Against Public Officers.

Action to remove a justice of the peace for failure to perform certain duties did not survive death of such officer. Dygert v. Harrison, 34 Idaho 377, 201 P. 719 (1921).

In mandamus to compel district judge to vacate certain orders, and in prohibition to restrain him from proceeding in the case, his successor in office cannot be substituted. Boise-Kuna Irrigation Dist. v. Hartson, 48 Idaho 572, 285 P. 456 (1929).

Whether, as a matter of right, a successor in office may be substituted for his predecessor as a party to an appeal to the supreme court in a mandamus proceeding was not decided; but where substituted was granted since no objection was made and no substantial right violated, court upheld such substitution. Independent Sch. Dist. No. 2 v. Butler, 53 Idaho 187, 22 P.2d 685 (1933).

Where the action is against a board or other body having a continuing existence, even where there is no statute providing for survivorship and substitution, the action will not abate because of change in personnel. Doolittle v. Eckert, 53 Idaho 384, 24 P.2d 36 (1933).

Divorce.

In a divorce action involving property rights where division was made by the trial court of the property and an appeal was taken from the judgment, it is not abated by the death of the respondent husband. Milbourn v. Milbourn, 86 Idaho 213, 384 P.2d 476 (1963).

Quiet Title Suit.

Heirs of plaintiff, plaintiff having died during pendency of suit to quiet title, were not required to be joined as parties on substitution of administrator as plaintiff, notwithstanding that the heirs might have been substituted alone or jointly with the administrator. Bruun v. Hanson, 103 F.2d 685 (9th Cir.), cert. denied, 308 U.S. 571, 60 S. Ct. 86, 84 L. Ed. 479 (1939).

A decree of court quieting title in a suit commenced by decedent during his lifetime, wherein his administrator was substituted on his death, was not subject to collateral attack by the heirs of the decedent who were not joined in the quiet title action; the ground of the attack being that the parties in the suit to quiet title were different than those in the action in which the heirs attempted to attack the decree, since, although the heirs might have been substituted to quiet title, they were not required to be made parties. Bruun v. Hanson, 103 F.2d 685 (9th Cir.), cert. denied, 308 U.S. 571, 60 S. Ct. 86, 84 L. Ed. 479 (1939).

In a suit by heirs against administrator and his attorney to set up a trust in mining claims, title to which had been quieted in defendants in a suit instituted by decedent wherein the administrator was substituted as plaintiff, a decree quieting title in such an action was not subject to collateral attack on the ground of fraud, in the absence of pleading or proof showing that the administrator and his attorney colluded with defendants in the suit to quiet title to obtain for themselves all of or an interest in the property to be quieted in defendants, or that the attorney and administrator did obtain such an interest. Bruun v. Hanson, 103 F.2d 685 (9th Cir.), cert. denied, 308 U.S. 571, 60 S. Ct. 86, 84 L. Ed. 479 (1939).

Road Districts.

Substitution of New Party.

In an action by a road district against a county to compel an apportionment of taxes, plaintiff district was entitled to be substituted for another district which covered the same territory and for which no taxes had ever been levied and which had never voted any improvement bonds. Good Road Dist. No. 2 v. Washington County, 27 Idaho 732, 152 P. 183 (1915). Substitution of New Party.

Motion and order for substitution of new party are necessary before proceeding in action. Holter v. Hauser, 33 Idaho 406, 195 P. 628 (1921).

New corporation claiming to have succeeded to rights and powers of one defunct must secure order of substitution before attempting appeal in name of its predecessor. Holter v. Hauser, 33 Idaho 406, 195 P. 628 (1921).

Orders substituting as litigants successors in interest of parties to the action cannot be made ex parte; it must be procured on motion after notice to the opposing party. Withington v. Erickson, 57 Idaho 53, 63 P.2d 150 (1936).

Supreme court, in appeal from order of trial court upholding validity of election of bank directors, granted a motion to substitute successors in interest to director who had resigned pending appeal though permitting resigned director to remain as a nominal plaintiff. Doolittle v. Morley, 76 Idaho 138, 278 P.2d 998 (1955).

Substitution of Personal Representative.

Court order of substitution is not necessary under this section to enable administrator to carry on his intestate’s litigation by appeal. Oatman v. Hampton, 43 Idaho 675, 256 P. 529 (1927); Hanson v. Rogers, 54 Idaho 360, 32 P.2d 126 (1934).

The action cannot be continued in the name of the deceased in behalf of his heirs without substitution of a representative or successor in interest of deceased. Arthur v. Kilpatrick Bros. Co., 47 Idaho 306, 274 P. 800 (1929).

If nonresident decedent is plaintiff in pending action which survives death, probate court may appoint administrator; but where he is defendant, there is no res for administration, precluding administrator. Russell v. Bow, 50 Idaho 264, 295 P. 437 (1931).

Court judicially notices that nonresident decedent, being defendant in pending action which survived death, had filed counter claim, justifying appointment of administrator; there being res for administration. Russell v. Bow, 50 Idaho 264, 295 P. 437 (1931).

Where one of defendants in proceeding by ditch company to enjoin obstruction of ditch died, the supreme court vacated the setting and continued case and executor was substituted by motion and the case reset for argument. Lower Payette Ditch Co. v. Smith, 73 Idaho 514, 254 P.2d 417 (1953).

Although a claimant’s cause of action was abated by his death because he did not have a surviving spouse, the appellate court did not dismiss the appeal, because the trial court had improperly dismissed the case and the personal representative should be given the opportunity to file an amended complaint for wrongful death without having to file a new lawsuit. Steele v. Kootenai Med. Ctr., 142 Idaho 919, 136 P.3d 905 (2006).

Survival or Abatement.

Injuries of personal nature which do not survive are such as injury to person, malicious prosecution, false imprisonment, libel, slander and the like; but injury which lessens estate of injured party does survive and is thus assignable. MacLeod v. Stelle, 43 Idaho 64, 249 P. 254 (1926).

Substitution of New Party.

This is not a general survival statute, and it is still recognized that certain actions die irretrievably with the death of a party. Moon v. Bullock, 65 Idaho 594, 151 P.2d 765 (1944), overruled on other grounds, Doggett v. Boiler Eng’r & Supply Co., 93 Idaho 890, 477 P.2d 511 (1970). Substitution of New Party.

Motion and order for substitution of new party are necessary before proceeding in action. Holter v. Hauser, 33 Idaho 406, 195 P. 628 (1921).

New corporation claiming to have succeeded to rights and powers of one defunct must secure order of substitution before attempting appeal in name of its predecessor. Holter v. Hauser, 33 Idaho 406, 195 P. 628 (1921).

Orders substituting as litigants successors in interest of parties to the action cannot be made ex parte; it must be procured on motion after notice to the opposing party. Withington v. Erickson, 57 Idaho 53, 63 P.2d 150 (1936).

Supreme court, in appeal from order of trial court upholding validity of election of bank directors, granted a motion to substitute successors in interest to director who had resigned pending appeal though permitting resigned director to remain as a nominal plaintiff. Doolittle v. Morley, 76 Idaho 138, 278 P.2d 998 (1955).

Substitution of Personal Representative.

Court order of substitution is not necessary under this section to enable administrator to carry on his intestate’s litigation by appeal. Oatman v. Hampton, 43 Idaho 675, 256 P. 529 (1927); Hanson v. Rogers, 54 Idaho 360, 32 P.2d 126 (1934).

The action cannot be continued in the name of the deceased in behalf of his heirs without substitution of a representative or successor in interest of deceased. Arthur v. Kilpatrick Bros. Co., 47 Idaho 306, 274 P. 800 (1929).

If nonresident decedent is plaintiff in pending action which survives death, probate court may appoint administrator; but where he is defendant, there is no res for administration, precluding administrator. Russell v. Bow, 50 Idaho 264, 295 P. 437 (1931).

Court judicially notices that nonresident decedent, being defendant in pending action which survived death, had filed counter claim, justifying appointment of administrator; there being res for administration. Russell v. Bow, 50 Idaho 264, 295 P. 437 (1931).

Where one of defendants in proceeding by ditch company to enjoin obstruction of ditch died, the supreme court vacated the setting and continued case and executor was substituted by motion and the case reset for argument. Lower Payette Ditch Co. v. Smith, 73 Idaho 514, 254 P.2d 417 (1953).

Although a claimant’s cause of action was abated by his death because he did not have a surviving spouse, the appellate court did not dismiss the appeal, because the trial court had improperly dismissed the case and the personal representative should be given the opportunity to file an amended complaint for wrongful death without having to file a new lawsuit. Steele v. Kootenai Med. Ctr., 142 Idaho 919, 136 P.3d 905 (2006).

Survival or Abatement.

Injuries of personal nature which do not survive are such as injury to person, malicious prosecution, false imprisonment, libel, slander and the like; but injury which lessens estate of injured party does survive and is thus assignable. MacLeod v. Stelle, 43 Idaho 64, 249 P. 254 (1926).

Transferee as “Real Party in Interest.”

This is not a general survival statute, and it is still recognized that certain actions die irretrievably with the death of a party. Moon v. Bullock, 65 Idaho 594, 151 P.2d 765 (1944), overruled on other grounds, Doggett v. Boiler Eng’r & Supply Co., 93 Idaho 890, 477 P.2d 511 (1970). Transferee as “Real Party in Interest.”

Where the plaintiff transferred the land and water rights by absolute deed during the pendency of an action to quiet the title to water rights, and no application was made that the real party in interest be made a party to the action and the plaintiff objected to the transferee being made a party, the plaintiff was not, under these circumstances, the “real party in interest” and was not entitled to maintain the action, notwithstanding the fact that the conveyance may have been made without consideration. Carrington v. Crandall, 63 Idaho 651, 124 P.2d 914 (1942).

C.J.S.

ALR.

Effect of death of beneficiary upon right of action under death statute. 13 A.L.R.4th 1060; 73 A.L.R.4th 441.

Claim for punitive damages in tort action as surviving death of tortfeasor or person wronged. 30 A.L.R.4th 707.

Abatement of state criminal case by accused’s death pending appeal of conviction — Modern cases. 80 A.L.R.4th 189.

Abatement effects of accused’s death before appellate review of federal criminal conviction. 80 A.L.R. Fed. 446.

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 201; R.S., R.C., & C.L., § 4109; C.S., § 6653; I.C.A.,§ 5-320, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho Civil Procedure Rules 14(a), 22.

Cross References.

Interpleader, Idaho R. Civ. P. 22.

Third party plaintiff, Idaho R. Civ. P. 14(a).

Prior Laws.

Former§ 5-321, which comprised R.S., R.C., & C.L., § 4110; C.S., § 6654; I.C.A.,§ 5-321, was repealed by S.L. 1971, ch. 164, § 1. «Title 5»«Ch. 3»«§ 5-321»

Cross References.

Interpleader, Idaho R. Civ. P. 22.

Third party plaintiff, Idaho R. Civ. P. 14(a).

Prior Laws.

Former § 5-321, which comprised R.S., R.C., & C.L., § 4110; C.S., § 6654; I.C.A., § 5-321, was repealed by S.L. 1971, ch. 164, § 1. CASE NOTES

Attorney’s Fees.

In an action to determine the ownership of land which was initiated by way of interpleader by a third party with contract rights to hay grown on the land, the award of attorney’s fees to such third party was authorized by this section. Furness v. Park, 98 Idaho 617, 570 P.2d 854 (1977).

Decisions Under Prior Law

Corporations’ Rights to Interplead Claimants.

Corporation may protect itself in case of conflicting claims to corporate stock by filing an interpleader and surrendering the certificates to the court. Tobias v. Wolverine Mining Co., 52 Idaho 576, 17 P.2d 338 (1932).

Depositary in Escrow Agreement.

Where a mining company enters into a contract with other parties for the sale of mining stock and an escrow agreement is entered into whereby the stock and agreements are deposited with a bank and a controversy arises between the parties to the contract and escrow agreement as to what shall be done with the stock and the cash paid for the stock, the depositary may bring an action to require the adverse parties to interplead, and, upon proper allegations the court may permit the escrow to turn such stock and money into the hands of the court and, thus, relieve the escrow holder from further responsibility. First Nat’l Bank v. Callahan Mining Co., 28 Idaho 627, 155 P. 673 (1916).

Property Levied On.

Where third party claimed property levied on, sheriff had to either return it to judgment debtor or third party; he could not hold it and institute interpleader to have rights of claimants decided. Acker v. Coleman, 60 Idaho 118, 88 P.2d 869 (1939).

Am. Jur. 2d.

C.J.S.

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 202; R.S., R.C., & C.L., § 4111; C.S., § 6655; am. 1927, ch. 57, § 1, p. 70; I.C.A.,§ 5-322, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho Civil Procedure Rule 24.

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 203; R.S., R.C., & C.L., § 4112; C.S., § 6656; I.C.A.,§ 5-323, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho Civil Procedure Rules 4 and 17.

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 204; R.S., R.C., & C.L., § 4113; C.S., § 6657; am. 1927, ch. 60, § 1, p. 73; I.C.A.,§ 5-324, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho Civil Procedure Rules 13, 14, 15, 19, and 20.

Compiler’s Notes.

This section, which comprised 1903, p. 370, § 1; reen. R.C. & C.L., § 4114; C.S., § 6658; I.C.A.,§ 5-325, was repealed by S.L. 1975, ch. 242, § 1. For present rule, see Idaho Civil Procedure Rules 9, 10, and 17.

Cross References.

Pleadings, unknown parties, Idaho R. Civ. P. 9 and 10.

Unknown owners or heirs as parties, Idaho R. Civ. P. 17.

Am. Jur. 2d.

§ 5-327. Personal injuries — Property damage — Death of wrongdoer — Death of injured party — Survival of action.

1. Causes of action arising out of injury to the person or property, or death, caused by the wrongful act or negligence of another, except actions for slander or libel, shall not abate upon the death of the wrongdoer, and each injured person or the personal representative of each one meeting death, as above stated, shall have a cause of action against the personal representative of the wrongdoer; provided, however, the punitive damages or exemplary damages shall not be awarded nor penalties adjudged in any such action; provided, however, that the injured person shall not recover judgment except upon some competent, satisfactory evidence corroborating the testimony of said injured person regarding negligence and proximate cause.
2. A cause of action for personal injury or property damage caused by the wrongful act or negligence of another shall not abate upon the death of the injured person from causes not related to the wrongful act or negligence. Provided however, that the damages that may be recovered in such action are expressly limited to those for: (i) medical expenses actually incurred, (ii) other out-of-pocket expenses actually incurred, and (iii) loss of earnings actually suffered, prior to the death of such injured person and as a result of the wrongful act or negligence. Such action shall be commenced or, if already commenced at the time of the death of the injured person, shall be thereafter prosecuted by the personal representative of the estate of the deceased person or, if there be no personal representative appointed, then by those persons who would be entitled to succeed to the property of the deceased person according to the provisions of section 5-311(2)(a), Idaho Code.

History.

1949, ch. 47, § 1, p. 82; am. 1965, ch. 137, § 1, p. 270; am. 1971, ch. 209, § 1, p. 918; am. 2010, ch. 349, § 2, p. 911.

Cross References.

Death of injured person, survival of action,§§ 5-311, 5-319.

Amendments.

The 2010 amendment, by ch. 349, in the section catchline, added “death of injured party” and added the subsection (1) designation and subsection (2).

Compiler’s Notes.

Section 2 of S.L. 1965, ch. 137 read: “The amendments incorporated herein shall be applicable only to causes of action accruing subsequent to the effective date of this act [March 13, 1965].” «Title 5»«Ch. 3»«§ 5-327»

Cross References.

Death of injured person, survival of action,§§ 5-311, 5-319.

Amendments.

The 2010 amendment, by ch. 349, in the section catchline, added “death of injured party” and added the subsection (1) designation and subsection (2).

Compiler’s Notes.

Effective Dates.

Section 2 of S.L. 1965, ch. 137 read: “The amendments incorporated herein shall be applicable only to causes of action accruing subsequent to the effective date of this act [March 13, 1965].” Effective Dates.

Section 3 of S.L. 1965, ch. 137 declared an emergency. Approved March 13, 1965.

Common Law Distinguished.

At common law if the tortfeasor died, the victim’s right of action died, with him; however, this rule has been abrogated in Idaho by the enactment of this section. Evans v. Twin Falls County, 118 Idaho 210, 796 P.2d 87 (1990), cert. denied, 498 U.S. 1086, 111 S. Ct. 960, 112 L. Ed. 2d 1048 (1991).

Damages in General.

The classification in this section, entitling those suing the tortfeasor to recover full damages awarded by the trier of fact and limiting the damages to $10,000 for those suing the tortfeasor’s representative, was not in conflict with equal protection clause. Stucki v. Loveland, 94 Idaho 621, 495 P.2d 571 (1972) (decision prior to 1971 amendment).

Limitation on damages of this section applied to “each person injured or killed,” and the preceding language in this section vested the cause of action in “each injured person or the personal representative of each one meeting death”. Stucki v. Loveland, 94 Idaho 621, 495 P.2d 571 (1972) (decision prior to 1971 amendment).

“Injured Person”.

“Injured person” in this section referred to the victim of the tort and not to each of heirs of the victim. Stucki v. Loveland, 94 Idaho 621, 495 P.2d 571 (1972).

Pain and Suffering.

An action for pain and suffering does not survive the death of the injured party, and§ 32-906 does not provide that pain and suffering is community property rather than the separate property of the injured spouse. Evans v. Twin Falls County, 118 Idaho 210, 796 P.2d 87 (1990), cert. denied, 498 U.S. 1086, 111 S. Ct. 960, 112 L. Ed. 2d 1048 (1991).

C.J.S.

ALR.

Action by or on Behalf of Minor Child, or Presumed Minor Child, for Loss of Parental Consortium — General Considerations. 4 A.L.R.7th 1.

Action by or on Behalf of Minor Child, or Presumed Minor Child, for Loss of Parental Consortium — Proof, Evidentiary Considerations, Limits of Recovery, Parties. 5 A.L.R.7th 4.

Action by or on Behalf of Minor Child, or Presumed Minor Child, for Loss of Parental Consortium — Impact of Other Legal Concepts and Theories of Recovery. 6 A.L.R.7th 4.

Property Within Indian Reservation.

Suit by federally recognized Indian tribe brought in federal court against the state and various state agencies, and numerous state officials in their individual capacities, seeking title to the banks and submerged lands of lakes and various rivers and streams that were within their reservation and a declaratory judgment to establish the tribe’s entitlement to the exclusive use, occupancy and right to quiet enjoyment of the submerged lands as well as a declaration of the invalidity of all Idaho statutes, ordinances, regulations, customs or usages which purport to regulate, authorize, use or affect in any way the submerged land and a permanent injunction prohibiting the state from permitting or taking any action in violation of the tribe’s rights of exclusive use was barred by Idaho’s Eleventh Amendment immunity since the exception of Ex Parte Young , 209 U.S. 123, 52 L. Ed. 714, 28 S. Ct. 441 (1908), did not apply and a state forum was available to hear such claims. Idaho v. Coeur d’Alene Tribe, 521 U.S. 261, 117 S. Ct. 2028, 138 L. Ed. 2d 438 (1997).

Unconditional Promise.

A letter from a department of transportation lawyer, promising not to advance a defense based upon the statute of limitations, was an unconditional promise that the defense would not be utilized and prevented the state from asking the court for summary judgment based on a subsequent inverse condemnation action being untimely filed as there is a genuine issue as to the length and breath of the promise. Day v. State, — Idaho —, 458 P.3d 162 (2020).

Cited Hutchins v. Trombley, 95 Idaho 360, 509 P.2d 579 (1973). RESEARCH REFERENCES

Am. Jur. 2d.

C.J.S.

§ 5-329. Service of process upon attorney general.

Process or notice as required by law in any such proceeding, whether judicial or summary, may be made upon the attorney general of the state of Idaho in the same manner and within the same time limited by law with respect to other parties to any such action or proceeding.

History.

1959, ch. 55, § 2, p. 116.

Effective Dates.

Section 3 of S.L. 1959, ch. 55 declared an emergency. Approved March 3, 1959.

Am. Jur. 2d.

C.J.S.

Amendments.

The 2018 amendment, by ch. 218, inserted “emergency” in the section heading; in the first sentence, inserted “and without compensation”, “or emergency” twice following “accident”, “emergency” twice preceding “first aid”, and “or emergency medical attention” following the second occurrence of “first aid”.

Am. Jur. 2d.

61 Am. Jur. 2d, Physicians, Surgeons, and Other Healers, § 282.

C.J.S.

ALR.

Effective Dates.

Section 2 of S.L. 1976, ch. 186 declared an emergency. Approved March 19, 1976.

Am. Jur. 2d.

61 Am. Jur. 2d, Physicians, Surgeons, and Other Healers, § 132.

C.J.S.

ALR.

Right of tortfeasor initially causing injury to recover indemnity or contribution from medical attendant causing new injury or aggravating injury in course of treatment. 72 A.L.R.4th 231.

Compiler’s Notes.

The letter in parentheses so appeared in the law as enacted.

The words “this act,” in the second paragraph, refer to S.L. 1981, ch. 165, which is codified as this section.

Amendments.

The 2010 amendment, by ch. 235, substituted “disability” for “handicap” in subsection (2).

Effective Dates.

Section 2 of S.L. 1985, ch. 147 declared an emergency. Approved March 21, 1985.

Claim Barred.

Wrongful birth claims are prohibited under this section, barring the patient’s claim for negligent infliction of emotional distress; at no time did the patient move to amend her complaint to state a claim for negligent infliction of emotional distress that did not specifically rely upon the wrongful birth allegations. Vanvooren v. Astin, 141 Idaho 440, 111 P.3d 125 (2005).

Effective Dates.

Section 18 of S.L. 1987, ch. 278 read: “The provisions of this act shall take effect on July 1, 1987, provided however, that Section [Sections] 1 through 11 shall apply only to causes of action which accrue on and after July 1, 1987. Provided further, that Section 6-1603, Idaho Code, as enacted herein, is hereby repealed and does sunset for causes of action which accrue after June 30, 1992.”

Jurisdictional Limits.

Although the language of§ 12-120(1) seems to conflict with this section and Idaho R. Civ. P. 9(g), these statutes and rule should be reconciled, if possible, so that the provisions of each will not be nullified. Rule 9(g) and this section suggest a way to do this. According to the rule, “no dollar amount or figure should be included in the complaint beyond a statement reciting that the jurisdictional amount established for filing the action is satisfied;” a similar general pleading should suffice to support a claim for attorney fees under§ 12-120(1). For example, the complaint could contain an appropriate general allegation that the plaintiff’s claim is within the jurisdictional limits of the district court, or magistrate’s division thereof. The complaint could separately allege that “plaintiff’s claim for damages does not exceed the limit set by§ 12-120(1) and plaintiff is entitled to an award of attorney fees under this statute.” Such allegations would satisfy the jurisdictional pleading requirement and also afford a plaintiff—or defendant—an opportunity to recover attorney fees under§ 12-120(1) without contravening§ 5-335 or Idaho R. Civ. P. 9(g). Czerwinsky v. Lieske, 122 Idaho 96, 831 P.2d 564 (Ct. App. 1992).

Specifying Amount of Damages.

Because subdivision (1) of§ 12-120 requires a party to specify the maximum amount of damages claimed and this section forbids a personal injury plaintiff from claiming a specific amount of damages, the statutes admittedly are difficult to reconcile. Therefore, to invoke the entitlement to attorney fees pursuant to§ 12-120, the complaint should also allege that the plaintiff’s claim for damages does not exceed the limit established by§ 12-120 and that the plaintiff is entitled to an award of attorney fees pursuant to§ 12-120; since this allegation will not specify the precise amount of damages claimed by the plaintiff, it will not violate this section. Cox v. Mueller, 125 Idaho 734, 874 P.2d 545 (1994).

Compiler’s Notes.

Section 19 of S.L. 1987, ch. 278 read: “The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of remaining portions of this act.”

Effective Dates.

Section 18 of S.L. 1987, ch. 278 read: “The provisions of this act shall take effect on July 1, 1987, provided however, that Section [Sections] 1 through 11 shall apply only to causes of action which accrue on and after July 1, 1987. Provided further, that Section 6-1603, Idaho Code, as enacted herein, is hereby repealed and does sunset for causes of action which accrue after June 30, 1992.”

Amendments.

The 2008 amendment, by ch. 299, in subsection (2)(a)(ii), inserted “by the owner”; in subsection (2)(a)(iii), substituted “owner’s program” for “site’s program”; added subsections (3)(a) and (3)(d); and added the subsection (3)(b) and (3)(c) designations; in subsection (3)(b), inserted “or against a person or entity who acquires or maintains a defibrillator” and substituted “reasonable use” for “good faith use”; and in subsection (3)(d), inserted “or reckless.” The 2010 amendment, by ch. 344, deleted paragraph (3)(d), which read: “The protection afforded within paragraph (a) of this subsection is applicable to a person or entity who acquires or maintains a defibrillator if such person or entity complies with the maintenance requirements set forth in subsection (2)(a)(ii) of this section.”

The 2014 amendment, by ch. 128, deleted “which has been prescribed by a physician or osteopath licensed pursuant to chapter 18, title 54, Idaho Code” at the end of subsection (1); deleted “as a result of a prescription” following “defibrillator” in the introductory paragraph of paragraph (2)(a) and near the beginning of paragraph (2)(b); deleted former paragraph (2)(a)(iii), which read: “There is involvement of a licensed physician in the owner’s program to ensure compliance with requirements for training, notification, maintenance and guidelines for use” and redesignated former paragraph (2)(a)(iv) as present (2)(a)(iii); in paragraph (3)(b), deleted “osteopath ” following “licensed physician” near the beginning, substituted “a physician who wrote a prescription” for “the physician or osteopath who wrote the prescription”, and deleted “if the prescription was written in good faith” from the end.

Effective Dates.

Section 2 of S.L. 1999, ch. 351 declared an emergency. Approved March 25, 1999.

Section 2 of S.L. 2004, ch. 129 declared an emergency. Approved March 19, 2004.

ALR.

§ 5-338. Immunity of donors of wild game meat.

1. A donor of wild game meat for free use by a charitable organization is immune from civil or criminal liability arising from an injury or death attributable to the nature, age, condition or packaging of the donated wild game meat if the injury or death is not a result of the gross negligence, recklessness, or intentional misconduct of the donor and the donated wild game meat is prepared and packaged by a commercial butcher, commercial slaughterhouse, commercial meat processor or similar entity subject by law to regular state or federal inspection and licensing.
2. A charitable organization that receives, distributes or serves donated wild game meat is immune from civil or criminal liability arising from an injury or death attributable to the condition of the meat if:
   1. The charitable organization uses appropriate food storage and handling equipment to provide for the safe and sanitary storage and/or service of the wild game meat;
   2. The charitable organization accepts only wild game meat prepared and packaged by a commercial butcher, commercial slaughterhouse, commercial meat processor, or similar entity subject by law to regular state or federal inspection and licensing;
   3. The charitable organization inspects the donated wild game meat in a reasonable manner and finds it to be apparently fit for human consumption at the time of distribution or service;
   4. The charitable organization has no actual or constructive knowledge at the time the wild game meat is distributed or served that it is adulterated, tainted, contaminated, or would be harmful to the health or well-being of a person eating it; and
   5. An injury or death caused by eating the wild game meat is not a proximate cause of the gross negligence, recklessness or intentional misconduct of the charitable organization.
3. For purposes of this section:
   1. “Charitable organization” means a nonprofit organization that is exempt from taxation under the provisions of sections 501(c)(3) and 501(c)(4) of the Internal Revenue Code, as amended.
   2. “Donor” means a person, retailer, commercial butcher, commercial slaughterhouse, commercial meat processor, or similar entity under state supervision, and the Idaho fish and game department in its capacity as a donor of unlawfully taken or unclaimed wildlife pursuant to section 36-1304, Idaho Code.
   3. “Wild game meat” means any raw, cooked, processed, or prepared edible meat from a game animal killed in the wild and used or intended for use in whole or in part for human consumption and which is exempt from the inspection requirements of the federal wholesome meat act; provided however, that wild game salami may not be donated. Wild game meat shall not be considered “adulterated” as that term is defined in chapter 1, title 37, Idaho Code, and IDAPA 16.02.19, merely because the meat is the product of a game animal killed in the wild and not slaughtered by a butcher in a state or federally regulated food processing establishment. Wild game meat shall be considered “wildlife” as that term is used in IDAPA 16.02.19, and shall be handled, prepared and served accordingly if the charitable organization is a food establishment as defined in the rules. «Title 5»«Ch. 3»«§ 5-338»

Cross References.

Fish and game department,§ 36-101 et seq.

Food deemed adulterated,§ 37-122.

Amendments.

The 2006 amendment, by ch. 94, in subsection (3)(c), deleted “or chapter 19, title 37, Idaho Code” following “wholesome meat act”, and substituted “chapter 1, title 37” for “chapters 1 and 19, title 37”.

Federal References.

Sections 501(c)(3) and 501(c)(4), referred to in paragraph (3)(a), are codified as 26 U.S.C.S. §§ 501(c)(3) and 501(c)(4).

The federal wholesome meat act, referred to in paragraph (3)(c), is codified as 21 U.S.C.S. § 601 et seq.

Cross References.

Food donors and gleaners exempt from liability,§ 6-1302.

Amendments.

The 2019 amendment, by ch. 142, substituted “and Blue Alert systems” for “system” in the section heading; added the subsection (1) designator to the “Amber Alert” definition; and added subsection (2).

Cross References.

Board of regents,§ 33-2802.

Dormitory housing commissions,§ 33-2118.

State board for career technical education,§ 33-2202.

Amendments.

The 2016 amendment, by ch. 25, substituted “board for career technical education” for “board of professional-technical education” near the middle of the section.

Legislative Intent.

Section 1 of S.L. 2014, ch. 1 provides: “Legislative Intent. The Legislature finds that uniform laws, regulations and policies regarding firearms and weapons on state college and university campuses are necessary for public safety. It is the intent of this Legislature to provide for the safety of students, faculty and staff of state colleges and universities to allow for the possession or carrying of firearms by certain licensed persons on state college and university campuses, with the exception of carrying within student dormitories and residence halls, and within public entertainment facilities, as defined.”

Effective Dates.

Section 3 of S.L. 2018, ch. 285 declared an emergency. Approved March 26, 2018.

Cross References.

Change of venue, Idaho R. Civ. P. 40(e).

Recording of judgment in original county when venue changed,§ 5-409.

Venue of probate proceedings,§ 15-1-303.

Compiler’s Notes.

The words “this code”, at the end of the first paragraph, refer to the Code of Civil Procedure, which is a division of the Idaho Code consisting of Titles 1 through 13.

Application of Section.

This section only applies if primary object of litigation is to determine title or an interest in real estate. Jarvis v. Hamilton, 73 Idaho 131, 246 P.2d 216 (1952). «Title 5»«Ch. 4»•§ 5-401»

Cross References.

Change of venue, Idaho R. Civ. P. 40(e).

Recording of judgment in original county when venue changed,§ 5-409.

Venue of probate proceedings,§ 15-1-303.

Compiler’s Notes.

The words “this code”, at the end of the first paragraph, refer to the Code of Civil Procedure, which is a division of the Idaho Code consisting of Titles 1 through 13.

Application of Section.

Construction in General.

This section only applies if primary object of litigation is to determine title or an interest in real estate. Jarvis v. Hamilton, 73 Idaho 131, 246 P.2d 216 (1952). Construction in General.

The provisions of this statute, requiring actions for recovery of realty to be filed in county where same is located, are mandatory and jurisdictional. Banbury v. Brailsford, 66 Idaho 262, 158 P.2d 826 (1945), overruled on other grounds, Thompson v. Turner, 98 Idaho 110, 558 P.2d 1071 (1977).

Where purchaser of real property at a probate sale fails to fulfill his contract and breaches same, the vendor has an election of remedies; he may proceed under§ 15-720 (repealed), or he may proceed in the district court and recover possession. Hunter v. Clawson, 70 Idaho 324, 216 P.2d 949 (1950).

This section should not be construed to limit subject-matter jurisdiction in an action affecting title to or possession of real estate to the court of the county where the real estate is located since§ 5-409 provides that in cases where such an action is brought in another county, a copy of the final judgment must be transmitted to the clerk of court of the county where the real estate is located. Thompson v. Turner, 98 Idaho 110, 558 P.2d 1071 (1977).

Foreclosure Suits.

In suit to establish trust and foreclose mortgage in certain county, court has jurisdiction to proceed against mortgage security in that county. Zohos v. Marefolos, 48 Idaho 291, 281 P. 1114 (1929).

Marital Relationship.

A divorce action in Idaho is sui generis with the marital relationship as the res of the action and is ambulatory with the person of one or the other of the spouses. Finnell v. Finnell, 59 Idaho 148, 81 P.2d 401 (1938).

Motion to Change Venue.

A motion for change of trial to place where realty sought to be recovered was situated which was supported by affidavit, sufficiently met the requirements of statute. Banbury v. Brailsford, 66 Idaho 262, 158 P.2d 826 (1945), overruled on other grounds, Thompson v. Turner, 98 Idaho 110, 558 P.2d 1071 (1977).

Personal Judgment Ordering Conveyance of Property.

While it is well settled that a judgment of a court of one state cannot directly affect title to realty located in another state, a personal judgment ordering a conveyance of the property by a party is a valid exercise of a court’s power. Andre v. Morrow, 106 Idaho 455, 680 P.2d 1355 (1984).

Rents and Profits.

Where supplemental complaint asked for an accounting of rents and profits, it did not change the original action to cancel deeds and quiet title in plaintiff to a transitory action, since the primary object was the recovery of realty. Banbury v. Brailsford, 66 Idaho 262, 158 P.2d 826 (1945), overruled on other grounds, Thompson v. Turner, 98 Idaho 110, 558 P.2d 1071 (1977).

Summons.

Where caption on copy of summons and the copy of the complaint served upon defendant correctly informed him of the pendency of the action and the court in which such action was pending, the summons was not absolutely void although it directed defendant to appear in the wrong county. Mattice v. Babcock, 52 Idaho 653, 20 P.2d 207 (1932).

Transitory Actions.

Where pleadings disclosed that primary purpose of complaint was to secure a determination of relation as a partnership and its dissolution thereof, and relief as to real estate held by the partnership was incidental, the action was transitory. Jarvis v. Hamilton, 73 Idaho 131, 246 P.2d 216 (1952).

Trespass or Injuries to Land.

Action for trespass upon lands can be sustained only in jurisdiction where such lands are situated. Taylor v. Sommers Bros. Match Co., 35 Idaho 30, 204 P. 472 (1922).

When an action is for a trespass on realty and also for the taking and destroying of personalty, but the chief cause of action is for injury to real estate, it is local. Taylor v. Sommers Bros. Match Co., 35 Idaho 30, 204 P. 472 (1922).

Lands lying in another state or country and trespassed upon, injured, or damaged cannot be made the subject of an action in Idaho. Taylor v. Sommers Bros. Match Co., 35 Idaho 30, 204 P. 472 (1922).

Action for injuries to real property should be brought in county where such real estate is situated. Brown v. Tamarack & Custer Consol. Mining Co., 37 Idaho 650, 218 P. 363 (1923).

As general rule, grasses growing from perennial roots are fructus naturales and real property within meaning of this section. Severe v. Gooding, 43 Idaho 755, 254 P. 1054 (1927).

Venue.

Proper venue for determination of partnership matters is as a general rule in the county where the partners reside not where the assets are held, even though part of the assets are real estate. Jarvis v. Hamilton, 73 Idaho 131, 246 P.2d 216 (1952).

Water Rights.

A federal district court sitting in Utah could not adjudicate water rights in Idaho except as to some interstate features; and as to the priorities and rights in Idaho, they must be remitted to an Idaho state court for a determination thereof. Albion-Idaho Land Co. v. Naf Irrigation Co., 97 F.2d 439 (10th Cir. 1938).

Am. Jur. 2d.

C.J.S.

ALR.

§ 5-402. Actions for penalties and against officers.

Actions for the following causes must be tried in the county where the cause, or some part thereof, arose, subject to the like power of the court to change the place of trial:

1. For the recovery of a penalty or forfeiture imposed by statute, except, that when it is imposed for an offense committed on a lake, river or other stream of water, situated in two (2) or more counties, the action may be brought in any county bordering on such lake, river or stream, and opposite to the place where the offense was committed.
2. Against a public officer, or person specially appointed to execute his duties, for any act done by him in virtue of his office; or against a person who, by his command or in his aid, does anything touching the duties of such officer.

History.

C.C.P. 1881, § 206; R.S., R.C., & C.L., § 4121; C.S., § 6662; I.C.A.,§ 5-402.

Cross References.

Change of venue, Idaho R. Civ. P. 40(e).

Actions Against Public Officers.

Where the plaintiffs, labor organizations, sought to enjoin the defendants, public officers, from authenticating, certifying, and enforcing a right to work bill (Acts 1985, ch. 2;§ 44-2001 et seq.), based on the allegedly improper passage of the bill with an emergency clause for which no emergency allegedly existed, the trial judge correctly looked to and applied subdivision 2 of this section to determine the proper venue for this cause of action. Idaho State AFL-CIO v. Leroy, 110 Idaho 691, 718 P.2d 1129 (1986).

Venue.

Proper venue for action by state to recover penalty against holder of liquor license and surety for sale of liquor after 1:00 a.m. on Sunday was the county where the liquor was sold. State ex rel. Summers v. Lake Tavern, Inc., 73 Idaho 377, 252 P.2d 831 (1953).

Where the action involved allegations that the land board both exceeded its authority and improperly exercised its authority, part of the cause of action arose in the county where the vast majority of the land in issue was located and the persons most directly affected lived; therefore, venue was proper in that county under subdivision 2 of this section, even though the land board made its decision in a different county. Priest Lake Coalition, Inc. v. State ex rel. Evans, 111 Idaho 354, 723 P.2d 898 (1986). Pursuant to subdivision 1, the magistrate court had venue of action regarding the suspension of driving privileges in the county where the defendant refused to submit to a blood test to determine the alcohol content of his blood. State v. Griffiths, 113 Idaho 364, 744 P.2d 92 (1987).

Am. Jur. 2d.

C.J.S.

67 C.J.S., Officers, § 132.

C.J.S.

92A C.J.S., Venue, §§ 124 to 126.

Cross References.

Actions against insurance companies may be brought where the loss occurs or where the policyholder resides,§ 41-1838.

Compiler’s Notes.

The bracketed insertion near the middle of the section was added by the compiler to add a word unintentionally left out of the 1923 amendment of this section.

Cross References.

Aeronautics, Idaho department of, review of actions by,§ 21-120.

Change of name, venue of proceedings,§ 7-802.

Change of venue, Idaho R. Civ. P. 40(e).

Criminal and civil jurisdiction over Indians and Indian territory,§ 67-5101 et seq.

Compiler’s Notes.

The words “this code”, refer to the Code of Civil Procedure, which is a division of the Idaho Code consisting of Titles 1 through 13.

CASE NOTES

Change of Venue.

Parties cannot stipulate for trial elsewhere. McCarty v. Herrick, 41 Idaho 529, 240 P. 192 (1925).

As a general rule, motion for change of venue is appearance in case. American Sur. Co. v. District Court, 43 Idaho 589, 254 P. 515 (1927).

Granting or refusing change of venue is within discretion of trial court. Spaulding v. Hoops, 49 Idaho 289, 287 P. 947 (1930).

A formal motion in addition to demand is not an essential prerequisite to defendant’s right to change of venue. Anderson v. Springer, 78 Idaho 17, 296 P.2d 1024 (1956).

The mere filing of a request for change of venue does not deprive a judge of jurisdiction to hear the cause. Rudd v. Rudd, 105 Idaho 112, 666 P.2d 639 (1983).

Defendant corporation’s waiver of venue in the county of its principle place of business was not sufficient to change venue. Pintlar Corp. v. Bunker Ltd. Partnership, 117 Idaho 152, 786 P.2d 543 (1990).

Where there was evidence upon which the district court could properly find that a contract was created and breached in the county in which the complaint was filed, that the ensuing damages occurred there, and that an unjust enrichment claim and false labor lien claim arose in the same county, the district court properly exercised its discretion when it denied a motion for change of venue. Corder v. Idaho Farmway, Inc., 133 Idaho 353, 986 P.2d 1019 (Ct. App. 1999).

Construction in General.

Contracts Fixing Venue Invalid.

This section should not be construed as limiting jurisdiction of district court in action commenced before it. American Sur. Co. v. District Court, 43 Idaho 589, 254 P. 515 (1927). Contracts Fixing Venue Invalid.

Contracts attempting to fix venue are invalid, as for example, a provision in a promissory note that it may be sued on in any county in the state. McCarty v. Herrick, 41 Idaho 529, 240 P. 192 (1925).

Corporations.

A corporation does not have the right to have actions against it tried in the county in which its principal place of business is located, or in which the agent who may have been designated under the statute resides. Smith v. Inter-Mountain Auto Co., 25 Idaho 212, 136 P. 1125 (1913).

In an action against multiple corporations, venue was proper in the county where one of the defendants had its principle place of business, rather than in the county where the cause of action arose. Pintlar Corp. v. Bunker Ltd. Partnership, 117 Idaho 152, 786 P.2d 543 (1990).

It was permissible for court to disregard defendant corporation’s principal place of business when it denied a change of venue motion since the corporation had been voluntarily dismissed as a party to the lawsuit by plaintiff; although defendant was dismissed subsequent to the motion for change of venue, the dismissal occurred before any of the defendants had filed either an answer or a motion for summary judgment. Ponderosa Paint Mfg., Inc. v. Yack, 125 Idaho 310, 870 P.2d 663 (Ct. App. 1994).

Custody of Minor Child.

District court had jurisdiction of complaint to determine custody of minor child, though neither plaintiff nor defendant were residents of county in which complaint was filed, where defendant a non-resident of the state, was served by summons in the county in which the complaint was filed. Clemens v. Kinsley, 72 Idaho 251, 239 P.2d 266 (1951).

Divorce Action.

The venue of a divorce action falls under this section. Finnell v. Finnell, 59 Idaho 148, 81 P.2d 401 (1938); Rudd v. Rudd, 105 Idaho 112, 666 P.2d 639 (1983).

A divorce is sui generis with the marital relationship, the res of the action, and is ambulatory with the person of one or the other of spouses. Finnell v. Finnell, 59 Idaho 148, 81 P.2d 401 (1938).

In case the action is brought in the wrong county, defendant has the right to have the cause transferred to the county of his residence. Finnell v. Finnell, 59 Idaho 148, 81 P.2d 401 (1938).

Foreclosure and Conversion.

Action to foreclose chattel mortgage joining an action in conversion against parties who are alleged to have converted part of the chattels was properly brought in the county where the remaining chattels were situated, rather than in county of defendant’s residence. Berg v. Carey, 40 Idaho 278, 232 P. 904 (1925).

Foreign Corporations.

Where bank’s only viable cause of action in the foreclosure of a senior trust deed was an action on the note, the district court did not err in denying a change of venue from county where debtor resided to another county. First Interstate Bank v. Eisenbarth, 123 Idaho 895, 853 P.2d 640 (Ct. App. 1993). Foreign Corporations.

For purposes of determining venue, a foreign corporation must be regarded as a resident of the county where it maintains its principal place of business in the state, subject to the choice of plaintiff in cases where the action may be maintained in either of two or more counties and to the power of the court to change the place of trial as provided in the code. Banning v. Minidoka Irr. Dist., 89 Idaho 506, 406 P.2d 802 (1965).

Improper Venue.

Although improper venue might be an appropriate issue in a direct appeal, it affords no basis to attack a judgment collaterally. Clark v. Atwood, 112 Idaho 115, 730 P.2d 1035 (Ct. App 1986).

Improper venue does not deprive a court of jurisdiction where service has been properly made. Clark v. Atwood, 112 Idaho 115, 730 P.2d 1035 (Ct. App. 1986).

Joint Tortfeasors.

Plaintiff has right to sue tortfeasors either jointly or severally; if sued severally, venue lies in county in which defendant resides, and he has inherent right to trial there; if sued jointly, action may be tried in any county in which either defendant may reside. Big Springs Land & Live Stock Co. v. Beck, 45 Idaho 509, 263 P. 477 (1928).

Libel and Slander.

The common-law rule that libel suit may be brought in any county in which a paper is circulated was abrogated by this section and the action must be brought where the paper is published. O’Malley v. Statesman Printing Co., 60 Idaho 326, 91 P.2d 357 (1939).

Where a newspaper was composed, printed, and published in Ada County, and immediately after being put into type, the alleged libelous article was printed in the paper and copies thereof were circulated in all counties of the state, not less than 7,000 in number in Ada County, and approximately 70 in Bannock County, where the plaintiff resided, the plaintiff’s cause of action arose in Ada County, and not in Bannock County; and where the suit was filed in Bannock County, the defendant was entitled to a change of venue to Ada County. O’Malley v. Statesman Printing Co., 60 Idaho 326, 91 P.2d 357 (1939).

An action for libel may be properly tried in the county wherein the defendants reside in accord with this section; on the other hand, the defendants may waive their right to have the action tried in the county of their residence. Bistline v. Eberle, 85 Idaho 167, 376 P.2d 501 (1962).

Malpractice.

A malpractice suit is a transitory action and place of trial is at the place of the residence of the defendant or some of the defendants. Anderson v. Springer, 78 Idaho 17, 296 P.2d 1024 (1956).

Nonresidents.

Partnerships.

Nonresident is subject to service in a suit filed by resident while in state attending hearing in a suit filed against him by another resident. Lacharite v. District Court, 74 Idaho 65, 256 P.2d 787 (1953). Partnerships.

Where pleadings disclosed that primary purpose of complaint was to secure a determination of relation as a partnership and its dissolution thereof, and relief as to real estate held by the partnership was incidental, the action was transitory. Jarvis v. Hamilton, 73 Idaho 131, 246 P.2d 216 (1952).

Proper venue for determination of partnership matters is in the county where the partners reside not where the assets are held, even though part of the assets are real estate. Jarvis v. Hamilton, 73 Idaho 131, 246 P.2d 216 (1952).

Personal Injuries.

Where a cause of action for personal injuries arose in a different county from that of the defendant’s residence, and the majority of the witnesses resided therein, plaintiff could have case retransferred there. Spaulding v. Hoops, 49 Idaho 289, 287 P. 947 (1930).

Promissory Notes.

Residence of defendant at time of commencement of action is only test for determining venue of action to enforce payment of promissory note. McCarty v. Herrick, 41 Idaho 529, 240 P. 192 (1925).

Real Estate Interest.

If real estate interest alleged is only incidental to equitable relief requested, the action is transitory. Jarvis v. Hamilton, 73 Idaho 131, 246 P.2d 216 (1952).

Securities.

In a securities case brought by the shareholders against the corporation and its representatives, alleging fraud, venue was proper in the county where the offer to sell was made and the shares were sold. Hayes v. Kingston, 140 Idaho 551, 96 P.3d 652 (2004).

Venue.

It is the defendant’s residence at the commencement of a suit that fixes the venue in a county. McCarty v. Herrick, 41 Idaho 529, 240 P. 192 (1925).

Determination of motion of change of venue under this section is within sound discretion of trial court, which will not be disturbed unless discretion is abused. Jarvis v. Hamilton, 73 Idaho 131, 246 P.2d 216 (1952).

Phrase “where the cause of action arose” in a fraud case means venue lies where the misrepresentation was made or heard, or where the injury occurred. In a security case, the phrase means venue lies where the offer to sell was made or where the securities were sold. Hayes v. Kingston, 140 Idaho 551, 96 P.3d 652 (2004).

The provision in this section, which sets forth that an action is to be tried in the county in which defendants “or some of them reside”, does not mandate that venue is proper only in counties where more than one defendant resides; where there are multiple defendants, it is permissible to base venue in the county of the residence of any one of them against whom substantial relief is sought. Pintlar Corp. v. Bunker Ltd. Partnership, 117 Idaho 152, 786 P.2d 543 (1990).

Personal Injuries.

Where a cause of action for personal injuries arose in a different county from that of the defendant’s residence, and the majority of the witnesses resided therein, plaintiff could have case retransferred there. Spaulding v. Hoops, 49 Idaho 289, 287 P. 947 (1930).

Promissory Notes.

Residence of defendant at time of commencement of action is only test for determining venue of action to enforce payment of promissory note. McCarty v. Herrick, 41 Idaho 529, 240 P. 192 (1925).

Real Estate Interest.

If real estate interest alleged is only incidental to equitable relief requested, the action is transitory. Jarvis v. Hamilton, 73 Idaho 131, 246 P.2d 216 (1952).

Securities.

In a securities case brought by the shareholders against the corporation and its representatives, alleging fraud, venue was proper in the county where the offer to sell was made and the shares were sold. Hayes v. Kingston, 140 Idaho 551, 96 P.3d 652 (2004).

Venue.

It is the defendant’s residence at the commencement of a suit that fixes the venue in a county. McCarty v. Herrick, 41 Idaho 529, 240 P. 192 (1925).

Determination of motion of change of venue under this section is within sound discretion of trial court, which will not be disturbed unless discretion is abused. Jarvis v. Hamilton, 73 Idaho 131, 246 P.2d 216 (1952).

Phrase “where the cause of action arose” in a fraud case means venue lies where the misrepresentation was made or heard, or where the injury occurred. In a security case, the phrase means venue lies where the offer to sell was made or where the securities were sold. Hayes v. Kingston, 140 Idaho 551, 96 P.3d 652 (2004).

The provision in this section, which sets forth that an action is to be tried in the county in which defendants “or some of them reside”, does not mandate that venue is proper only in counties where more than one defendant resides; where there are multiple defendants, it is permissible to base venue in the county of the residence of any one of them against whom substantial relief is sought. Pintlar Corp. v. Bunker Ltd. Partnership, 117 Idaho 152, 786 P.2d 543 (1990).

Cited Guynn v. McDaneld, 4 Idaho 605, 43 P. 74 (1895); Stephan v. Hoffman, 86 Idaho 304, 386 P.2d 56 (1963); Skelton v. Spencer, 102 Idaho 69, 625 P.2d 1072 (1981); Priest Lake Coalition, Inc. v. State ex rel. Evans, 111 Idaho 354, 723 P.2d 898 (1986); Burton v. Atomic Workers Fed. Credit Union, 119 Idaho 17, 803 P.2d 518 (1990); Lohman v. Flynn, 139 Idaho 312, 78 P.3d 379 (2003).

RESEARCH REFERENCES

Am. Jur. 2d.

77 Am. Jur. 2d, Venue, § 24 et seq.

C.J.S.

46 C.J.S., Insurance, §§ 1764, 1765.

92A C.J.S., Venue, §§ 79 to 126.

ALR.

§ 5-405. Improper venue

Proceedings. [Repealed.]

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 209; R.S., R.C., & C.L., § 4124; C.S., § 6665; I.C.A.,§ 5-405, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho Civil Procedure Rules 12 and 40.

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 210; R.S. & R.C., § 4125; am. 1913, ch. 96, § 1, p. 385; reen. C. L., § 4125; C.S., § 6666; I.C.A.,§ 5-406, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho Civil Procedure Rule 40.1.

Compiler’s Notes.

This section, which comprised R.S., § 4126; am. 1907, p. 578, § 1; reen. R.C. & C.L., § 4126; C.S., § 6667; I.C.A.,§ 5-407; am. 1933, ch. 182, § 1, p. 337; am. 1969, ch. 114, § 1, p. 371; am. 1970, ch. 118, § 1, p. 281, was repealed by S.L. 1975, ch. 242, § 1. For present rule, see Idaho Civil Procedure Rules 40 and 40.1.

Effective Dates.

Section 3 of S.L. 1969, ch. 114 provided that the act should become effective at 12:01 a.m. on January 11, 1971.

Section 2 of S.L. 1993, ch. 83 read: “This act shall be in full force and effect on and after July 1, 1993, and shall apply to costs and expenses incurred after this date.”

Review on Appeal.

On appeal from order granting change of venue, transcript may be made and certified by clerk of court from which change was granted. Ondes v. Bunker Hill & Sullivan Mining Concentrating Co., 37 Idaho 570, 218 P. 364 (1923).

Am. Jur. 2d.

C.J.S.

Compiler’s Notes.

The words enclosed in parentheses so appeared in the law as enacted.

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 214; R.S., R.C., & C.L., § 4138; C.S., § 6670; am. 1927, ch. 54, § 1, p. 68; I.C.A.,§ 5-501, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho Civil Procedure Rule 3.

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 215; R.S., § 4139; am. 1895, p. 139, § 1; reen. 1899, p. 271, § 1; reen. R.C. & C.L., § 4139; C.S., § 6671; am. 1927, ch. 93, § 1, p. 119; I.C.A.,§ 5-502, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho Civil Procedure Rule 4.

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 216; R.S., § 4140; am. 1907, p. 537, § 1; reen. R.C., § 4140; am. 1913, ch. 87, § 1, p. 361; reen. C.L., § 4140; C.S., § 6672; am. 1921, ch. 154, § 1, p. 346; am. 1927, ch. 93, § 2, p. 119; I.C.A.,§ 5-503, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho Civil Procedure Rule 4.

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 217; R.S. & R.C., § 4141; am. 1911, ch. 110, § 1, p. 366; reen. C.L., § 4141; C.S., § 6673; am. 1927, ch. 93, § 3, p. 119; I.C.A.,§ 5-504, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho Civil Procedure Rule 4.

Cross References.

Notices of pendency of actions affecting real estate or title or possession to be recorded by county recorder,§ 31-2402; index,§ 31-2404.

Partition of real estate, filing of lis pendens in actions for,§ 6-504.

Sheriff’s fee for making return of process,§ 31-3203.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975.

Effect of Lis Pendens.

Person having no interest in mortgaged premises sought to be foreclosed prior to filing of lis pendens, other than right to burial ground, is bound by foreclosure sale. Noble v. Harris, 33 Idaho 401, 195 P. 543 (1921).

Injunction to prevent sales of water will attach to right of irrigation company acquired by foreclosure before filing of lis pendens in injunction suit. Idaho Irrigation Co. v. Gooding, 265 U.S. 518, 44 S. Ct. 618, 68 L. Ed. 1157 (1924).

The filing of a lis pendens may highlight a possible legal problem affecting the property, thereby inducing an extra measure of caution by potential purchasers or lenders until the litigation is concluded, but this does not mean that any underlying legal rights have been altered. Jerry J. Joseph C.L.U. Ins. Assocs. v. Vaught, 117 Idaho 555, 789 P.2d 1146 (Ct. App. 1990).

Equity Affecting Third Party Purchaser.

Where a third party purchaser from defendant may have relied on plaintiff’s long continued recognition of timber deed to defendant, this presents a strong enough appeal to equity that full rescission will not be allowed so as to require the operation of this section and adversely affect third party purchaser. Morrow v. Wm. Berklund Forest Prod. Co., 81 Idaho 428, 346 P.2d 623 (1959).

Foreclosure of Mechanic’s Lien.

It is necessary to file a lis pendens in connection with an action to foreclose a mechanic’s lien in order to give constructive notice of the foreclosure of the lien beyond the six-month period required for commencing such action. Credit Bureau of Lewiston-Clarkston, Inc. v. Idaho First Nat’l Bank, 117 Idaho 29, 784 P.2d 885 (1989).

Knowledge of Third Party Interest.

Since plaintiffs in condemnation proceeding had actual knowledge of appellants’ interest in property, it was incumbent on them to join appellants as parties defendant so that the latter might present their case to the trial court; upon plaintiffs failure to do so, it was an abuse of discretion for the trial court to refuse to set aside appellants’ default, reopen the case and permit appellants to submit proof, including presentation of evidence as to severance damages. Rich v. Wylie, 84 Idaho 58, 367 P.2d 763 (1962).

Pending Appeal.

Where the purchasers were in possession of the property and the vendor’s main concern was the transfer of the property to a bona fide purchaser during pendency of an appeal, the appropriate method the vendors should have followed to protect their interest in the property was the filing of a lis pendens on the property. Suitts v. First Sec. Bank, 100 Idaho 555, 602 P.2d 53 (1979).

Purpose.

A lis pendens is a notice to the world of the existence of a claim affecting certain real property. Jerry J. Joseph C.L.U. Ins. Assocs. v. Vaught, 117 Idaho 555, 789 P.2d 1146 (Ct. App. 1990).

A lis pendens does not create a lien; it’s purpose is simply to give notice of the pendency of a lawsuit affecting the title or the right to possession of real property to subsequent purchasers or encumbrancers of the property who have not actual knowledge of the action or of the claim upon which it is based. Benz v. D. L. Evans Bank, 152 Idaho 215, 268 P.3d 1167 (2012).

Person having no interest in mortgaged premises sought to be foreclosed prior to filing of lis pendens, other than right to burial ground, is bound by foreclosure sale. Noble v. Harris, 33 Idaho 401, 195 P. 543 (1921).

Injunction to prevent sales of water will attach to right of irrigation company acquired by foreclosure before filing of lis pendens in injunction suit. Idaho Irrigation Co. v. Gooding, 265 U.S. 518, 44 S. Ct. 618, 68 L. Ed. 1157 (1924).

The filing of a lis pendens may highlight a possible legal problem affecting the property, thereby inducing an extra measure of caution by potential purchasers or lenders until the litigation is concluded, but this does not mean that any underlying legal rights have been altered. Jerry J. Joseph C.L.U. Ins. Assocs. v. Vaught, 117 Idaho 555, 789 P.2d 1146 (Ct. App. 1990).

Equity Affecting Third Party Purchaser.

Where a third party purchaser from defendant may have relied on plaintiff’s long continued recognition of timber deed to defendant, this presents a strong enough appeal to equity that full rescission will not be allowed so as to require the operation of this section and adversely affect third party purchaser. Morrow v. Wm. Berklund Forest Prod. Co., 81 Idaho 428, 346 P.2d 623 (1959).

Foreclosure of Mechanic’s Lien.

It is necessary to file a lis pendens in connection with an action to foreclose a mechanic’s lien in order to give constructive notice of the foreclosure of the lien beyond the six-month period required for commencing such action. Credit Bureau of Lewiston-Clarkston, Inc. v. Idaho First Nat’l Bank, 117 Idaho 29, 784 P.2d 885 (1989).

Knowledge of Third Party Interest.

Since plaintiffs in condemnation proceeding had actual knowledge of appellants’ interest in property, it was incumbent on them to join appellants as parties defendant so that the latter might present their case to the trial court; upon plaintiffs failure to do so, it was an abuse of discretion for the trial court to refuse to set aside appellants’ default, reopen the case and permit appellants to submit proof, including presentation of evidence as to severance damages. Rich v. Wylie, 84 Idaho 58, 367 P.2d 763 (1962).

Pending Appeal.

Where the purchasers were in possession of the property and the vendor’s main concern was the transfer of the property to a bona fide purchaser during pendency of an appeal, the appropriate method the vendors should have followed to protect their interest in the property was the filing of a lis pendens on the property. Suitts v. First Sec. Bank, 100 Idaho 555, 602 P.2d 53 (1979).

Purpose.

A lis pendens is a notice to the world of the existence of a claim affecting certain real property. Jerry J. Joseph C.L.U. Ins. Assocs. v. Vaught, 117 Idaho 555, 789 P.2d 1146 (Ct. App. 1990).

Removal from Record.

A lis pendens does not create a lien; it’s purpose is simply to give notice of the pendency of a lawsuit affecting the title or the right to possession of real property to subsequent purchasers or encumbrancers of the property who have not actual knowledge of the action or of the claim upon which it is based. Benz v. D. L. Evans Bank, 152 Idaho 215, 268 P.3d 1167 (2012). Removal from Record.

Where formal notices of lis pendens operated in the nature of recorded liens on property, yet it was clear from the record that none of the property which had been so encumbered was involved in the actions against property owners, the doctrine of lis pendens was wholly inapplicable and the liens and lis pendens were dissolved and ordered expunged from the record. Eismann v. Miller, 101 Idaho 692, 619 P.2d 1145 (1980).

The removal of a lis pendens, as the result of a settlement or judgment, has no effect on legal rights; it simply is a signal that a dispute over those rights has been resolved. Jerry J. Joseph C.L.U. Ins. Assocs. v. Vaught, 117 Idaho 555, 789 P.2d 1146 (Ct. App. 1990).

Third-Party Acquisition Before Notice.

If a third-party acquires rights to property before receiving actual notice that an action affecting the property has been filed, or before a notice of lis pendens has been filed, the third-party is not bound by the subsequent judgment or decree entered in the action, unless it is made a party to the action. Sartain v. Fidelity Fin. Servs., Inc., 116 Idaho 269, 775 P.2d 161 (Ct. App. 1989).

Unnecessary in Case of Actual Notice.

The filing of a lis pendens is necessary only for the purpose of giving record notice to subsequent purchasers or incumbrancers of the property, who do not have actual knowledge of the action or of the claim upon which it is based; one who has actual knowledge is not entitled to insist that the filing of a lis pendens was necessary. Smith v. Faris-Kesl Constr. Co., 27 Idaho 407, 150 P. 25 (1915).

When a subsequent purchaser or encumbrancer has actual knowledge of an action affecting its right or interest in real property, a notice of lis pendens need not be filed by the party advancing the claim. Sartain v. Fidelity Fin. Servs., Inc., 116 Idaho 269, 775 P.2d 161 (Ct. App. 1989).

Am. Jur. 2d.

C.J.S.

ALR.

§ 5-506. Summons

Issuance and return. [Repealed.]

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 219; R.S., R.C., & C.L., § 4143; C.S., § 6675; I.C.A.,§ 5-506, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho Civil Procedure Rule 4.

Compiler’s Notes.

This section, which comprised R.S., § 4144; am. 1897, p. 13, § 1; reen. 1899, p. 293, § 1; am. 1907, p. 319, § 1; reen. R.C., § 4144; am. 1909, p. 185, § 1; compiled and reen. C.L., § 4144; C.S., § 6676; I.C.A.,§ 5-507, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho Civil Procedure Rule 4.

Cross References.

Change of name, notice of hearing of petition,§ 7-803.

Effect of judgments and decrees when parties served by publication,§ 5-326.

Manner of service,§ 5-509.

Partition, publication of summons,§ 6-506.

Pleadings, designation of unknown party, Idaho R. Civ. P. 10.

Pleading special matters, unknown parties, Idaho R. Civ. P. 9.

Unknown owners or heirs as parties,§ 5-326; Idaho R. Civ. P. 17.

Amendments.

The 2011 amendment, by ch. 26, deleted “or, if the address of the defendant outside of the state is known, may make an order that personal service of the summons may be made outside of the state in lieu of such publication” following “publication of the summons” near the end of the first sentence and added the last sentence.

The 2012 amendment, by ch. 98, inserted “affidavit or a” preceding “verified complaint” near the middle of the first sentence.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975.

The subject matter of at least a part of this section appears to have been abrogated, affected or covered by Idaho R. Civ. P. 4(e)(1) and 4(e)(2).

Effective Dates.

Section 2 of S.L. 2012, ch. 98 declared an emergency. Approved March 21, 2012.

Child Support Proceedings.

Since Idaho statutes authorized substitute service in an action against a nonresident for debt, and service being essential to the maintenance of such an action, the court did not err in denying the motion to quash service of summons secured by substitute service on a nonresident husband in an action by divorced wife to recover past due installments of child support on the ground that the action was not in rem. Skillern v. Ward, 79 Idaho 350, 317 P.2d 1050 (1957).

Construction in General.

This section is strictly construed and compliance therewith must be exact. Strode v. Strode, 6 Idaho 67, 52 P. 161 (1898), overruled on other grounds, Nixon v. Tongren, 33 Idaho 287, 193 P. 731 (1920). But see Mills v. Smiley, 9 Idaho 317, 76 P. 783 (1903).

Resort to publication can be had only when it is impracticable to obtain personal service. Bear Lake County v. Budge, 9 Idaho 703, 75 P. 614 (1904).

Divorce Actions.

Constructive service of summons on residents of the state cannot be had, nor provision therefor provided by legislation. Bear Lake County v. Budge, 9 Idaho 703, 75 P. 614 (1904). Divorce Actions.

Divorce actions fall within the purview of the law allowing service of summons by publication, but strict compliance is demanded in such actions; these actions are classified as actions in rem, since the marital status is the res. Gorges v. Gorges, 42 Idaho 357, 245 P. 691 (1926).

Due Diligence.

This section does not dispense with the use of due diligence to ascertain the residence or post-office address of the defendant, and the mere assertion of diligence in the affidavit is not a compliance with the statute. Lohr v. Curley, 27 Idaho 739, 152 P. 185 (1915).

Jurisdiction.

Where, in an action in justices’ court to recover money judgment from a nonresident, the court was without jurisdiction until an amendment was filed waiving all claim in excess of the jurisdictional amount, service of process based on an order of publication made prior to the date of the amendment was void, and the amendment, without ensuing legal initial service of process, was unavailing as acquiring jurisdiction of defendant. Aker v. Silbaugh, 62 Idaho 539, 113 P.2d 814 (1941).

Nonresident Insane Person.

Service of summons on guardian ad litem and county attorney in proceedings against nonresident insane person is not compliance with this section, but merely additional to it. Gorges v. Gorges, 42 Idaho 357, 245 P. 691 (1926).

Personal Service in Lieu of Publication.

Existence of verified complaint on file, stating cause of action against defendant against whom service is sought, is essential prerequisite to issuance of order for personal service outside state. Elliott v. Wirth, 34 Idaho 797, 198 P. 757 (1921).

Personal service outside state, when ordered, is in lieu of publication and same proof is necessary in case of default based upon such service. Portland Cattle Loan Co. v. Gemmell, 41 Idaho 756, 242 P. 798 (1925).

Requirements of Affidavit.

An affidavit for publication which describes as the basis of the action a cause of action different from the one alleged in the complaint cannot be made the basis for an order for publication, and an order for publication and publication of summons under such order are void and do not give an absent defendant constructive notice of the pendency of the action. Vermont Loan & Trust Co. v. McGregor, 5 Idaho 510, 51 P. 104 (1897).

An affidavit for publication should show whether the defendant is a resident or nonresident of the state and his last place of residence, if known, and if such place is unknown, that fact should also appear. Mills v. Smiley, 9 Idaho 317, 76 P. 783 (1904).

Divorce Actions.

There is no statutory requirement for a specific statement, in an affidavit for service by publication of a motion for a default judgment, that the foreign party had no business agent, manager, cashier, or secretary within the state. Instead, the court can draw that conclusion, so long as there is a sufficient factual basis for such conclusion. Secured Inv. Corp. v. Myers Exec. Bldg., LLC, 162 Idaho 105, 394 P.3d 807 (Ct. App. 2016). Divorce Actions.

Divorce actions fall within the purview of the law allowing service of summons by publication, but strict compliance is demanded in such actions; these actions are classified as actions in rem, since the marital status is the res. Gorges v. Gorges, 42 Idaho 357, 245 P. 691 (1926).

Due Diligence.

This section does not dispense with the use of due diligence to ascertain the residence or post-office address of the defendant, and the mere assertion of diligence in the affidavit is not a compliance with the statute. Lohr v. Curley, 27 Idaho 739, 152 P. 185 (1915).

Jurisdiction.

Where, in an action in justices’ court to recover money judgment from a nonresident, the court was without jurisdiction until an amendment was filed waiving all claim in excess of the jurisdictional amount, service of process based on an order of publication made prior to the date of the amendment was void, and the amendment, without ensuing legal initial service of process, was unavailing as acquiring jurisdiction of defendant. Aker v. Silbaugh, 62 Idaho 539, 113 P.2d 814 (1941).

Nonresident Insane Person.

Service of summons on guardian ad litem and county attorney in proceedings against nonresident insane person is not compliance with this section, but merely additional to it. Gorges v. Gorges, 42 Idaho 357, 245 P. 691 (1926).

Personal Service in Lieu of Publication.

Existence of verified complaint on file, stating cause of action against defendant against whom service is sought, is essential prerequisite to issuance of order for personal service outside state. Elliott v. Wirth, 34 Idaho 797, 198 P. 757 (1921).

Personal service outside state, when ordered, is in lieu of publication and same proof is necessary in case of default based upon such service. Portland Cattle Loan Co. v. Gemmell, 41 Idaho 756, 242 P. 798 (1925).

Requirements of Affidavit.

An affidavit for publication which describes as the basis of the action a cause of action different from the one alleged in the complaint cannot be made the basis for an order for publication, and an order for publication and publication of summons under such order are void and do not give an absent defendant constructive notice of the pendency of the action. Vermont Loan & Trust Co. v. McGregor, 5 Idaho 510, 51 P. 104 (1897).

An affidavit for publication should show whether the defendant is a resident or nonresident of the state and his last place of residence, if known, and if such place is unknown, that fact should also appear. Mills v. Smiley, 9 Idaho 317, 76 P. 783 (1904).

Sufficiency of Publication.

There is no statutory requirement for a specific statement, in an affidavit for service by publication of a motion for a default judgment, that the foreign party had no business agent, manager, cashier, or secretary within the state. Instead, the court can draw that conclusion, so long as there is a sufficient factual basis for such conclusion. Secured Inv. Corp. v. Myers Exec. Bldg., LLC, 162 Idaho 105, 394 P.3d 807 (Ct. App. 2016). Sufficiency of Publication.

Where an order for publication of summons was made on August 1, in a justice court in an action to recover a money judgment against a nonresident defendant, and the only compliance was by registered mail to defendant on August 1 and 23, the justice court did not acquire jurisdiction by publication of summons. Aker v. Silbaugh, 62 Idaho 539, 113 P.2d 814 (1941).

For persons engaged in actionable conduct who subsequently move, leaving no forwarding address by which their whereabouts may be determined, service of summons by publication in a newspaper of general circulation in the area and mailing of copies of the summons and complaint to that party’s last known address is reasonably calculated under all the circumstances to apprise that party of the pendency of an action and does not violate due process. Evans v. Galloway, 108 Idaho 711, 701 P.2d 659 (1985).

Validity of Judgment.

Sections 8-501, 8-502 and this section clearly authorized an action against a non-resident, and attachment of his property within the state for the satisfaction of a debt owing to the plaintiff and a judgment in favor of the plaintiff in such an action based upon substituted service is valid and enforceable to extent of the value of the properties seized. Skillern v. Ward, 79 Idaho 350, 317 P.2d 1050 (1957).

Am. Jur. 2d.

C.J.S.

Cross References.

Daily newspaper defined,§ 60-107; may designate day for publication of notices,§ 60-108.

Publication of notices,§ 60-109.

Qualifications of newspapers publishing legal notices,§ 60-106.

Rates for official notices,§ 60-105.

Unknown owners, heirs, devisees as parties,§ 5-326.

Amendments.

The 2019 amendment, by ch. 147, substituted “order must direct” for “clerk must direct” near the beginning of the second paragraph.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975.

The subject matter of this section appears to have been abrogated, affected or covered at least in part by Idaho R. Civ. P. 4(e)(1).

Effective Dates.

Section 3 of S.L. 1957, ch. 137 declared an emergency. Approved March 7, 1957.

Duration of Publication.

The month contemplated by this section is a calendar month and not a lunar month, but a publication for five consecutive weeks at intervals of a week is sufficient. Forsman v. Bright, 8 Idaho 467, 69 P. 473 (1902) (decided prior to 1909 amendment).

Where the order for publication of summons directed that publication be made “at least once a week for one full month” and the summons is published in a weekly newspaper for five consecutive weeks, the first publication being made on September 16 and the last publication October 14 following, the requirement of this section was complied with. Harpold v. Doyle, 16 Idaho 671, 102 P. 158 (1908) (decided prior to 1909 amendment).

Where an order for publication of summons was made on August 1, in a justice court in an action to recover a money judgment against a nonresident defendant, and the only compliance was by registered mail to defendant on August 1 and 23, justice court did not acquire jurisdiction by publication of summons. Aker v. Silbaugh, 62 Idaho 539, 113 P.2d 814 (1941).

Motion to Quash Service.

Since Idaho statutes authorized substitute service in an action against a nonresident for debt, and service being essential to the maintenance of such an action, the court did not err in denying the motion to quash service of summons secured by substitute service on a nonresident husband in an action by divorced wife to recover past due installments of child support on the ground that the action was not in rem. Skillern v. Ward, 79 Idaho 350, 317 P.2d 1050 (1957).

Order Must Direct Mailing.

In order to obtain jurisdiction, the order for publication must direct copies to be mailed to the defendant, if his address is known. Mills v. Smiley, 9 Idaho 317, 76 P. 783 (1903).

Substantial Compliance.

Statutory requirements authorizing service by publication must receive substantial compliance. Mills v. Smiley, 9 Idaho 325, 76 P. 783 (1904); McKnight v. Grant, 13 Idaho 629, 92 P. 989 (1907).

The proceedings of courts of general jurisdiction, where the summons is served by publication, are supported by the same presumptions as where the service is personally made and cannot be avoided for mere errors or irregularities. Harpold v. Doyle, 16 Idaho 671, 102 P. 158 (1908).

Am. Jur. 2d.

C.J.S.

Cross References.

Joinder of parties, Idaho R. Civ. P. 19 and 20.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975.

Am. Jur. 2d.

C.J.S.

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 224; R.S. & R.C., § 4148; am. 1909, p. 185, § 4; reen. C.L., § 4148; C.S., § 6680; I.C.A.,§ 5-511, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho Civil Procedure Rule 4.

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 225; R.S., R.C., & C.L., § 4149; C.S., § 6681; I.C.A.,§ 5-512, was repealed by S.L. 1975, ch. 242, § 1. For present rule, see Idaho Civil Procedure Rule 4.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975.

The subject matter of this section appears to have been abrogated, affected or covered at least in part by Idaho R. Civ. P. 4.

C.J.S.

ALR.

Who is “general” or “managing” agent of foreign corporation under statute authorizing service of process on such agent. 17 A.L.R.3d 625.

Compiler’s Notes.

The words “effective date of this act”, in subsection (f), means the effective date of S.L. 1988, ch. 106, which was July 1, 1988.

Construction.

Sections 5-514 — 5-517 are designed to provide a forum for Idaho residents and are remedial legislation of the most fundamental nature; therefore, they are to be liberally construed. Doggett v. Electronics Corp. of Am., 93 Idaho 26, 454 P.2d 63 (1969); Duignan v. A.H. Robins Co., 98 Idaho 134, 559 P.2d 750 (1977).

This section is patterned after the Illinois long-arm statute and Illinois decisions may be looked to for persuasive guidance in construing it. Southern Idaho Pipe & Steel Co. v. Cal-Cut Pipe & Supply, Inc., 98 Idaho 495, 567 P.2d 1246 (1977), cert. denied and appeal dismissed, 434 U.S. 1056, 98 S. Ct. 1225, 55 L. Ed. 2d 757 (1978).

Subdivision (a) of this section is designed to provide a forum for in-state residents in a world of increasingly complex commercial transactions and, since it is remedial in nature, should be broadly construed. Southern Idaho Pipe & Steel Co. v. Cal-Cut Pipe & Supply, Inc., 98 Idaho 495, 567 P.2d 1246 (1977), cert. denied and appeal dismissed, 434 U.S. 1056, 98 S. Ct. 1225, 55 L. Ed. 2d 757 (1978).

In order for jurisdiction to be obtained over an out-of-state defendant, the act giving rise to the cause of action must fall within the scope of this state’s long-arm jurisdiction and the constitutional standards of due process must be met. Schneider v. Sverdsten Logging Co., 104 Idaho 210, 657 P.2d 1078 (1983).

This section is designed to provide a forum for this state’s residents and is to be liberally construed. Beco Corp. v. Roberts & Sons Constr. Co., 114 Idaho 704, 760 P.2d 1120 (1988), overruled on other grounds by Houghland Farms, Inc. v. Johnson, 119 Idaho 72, 803 P.2d 978 (1990), to the extent it conflicts with Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985).

Construction With Other Law.

This section and§ 49-2421 do not impliedly repeal§ 5-229. Tetzlaff v. Brooks, 130 Idaho 903, 950 P.2d 1242 (1997).

Defendant’s Activities.

The fact that plaintiff’s place of business was in Idaho had no significance in determining whether Idaho may exercise personal jurisdiction over defendant; it is defendant’s activities, not plaintiff’s location, that must be considered. Houghland Farms, Inc. v. Johnson, 119 Idaho 72, 803 P.2d 978 (1990). Intent of legislature.

Construction.

Sections 5-514 — 5-517 are designed to provide a forum for Idaho residents and are remedial legislation of the most fundamental nature; therefore, they are to be liberally construed. Doggett v. Electronics Corp. of Am., 93 Idaho 26, 454 P.2d 63 (1969); Duignan v. A.H. Robins Co., 98 Idaho 134, 559 P.2d 750 (1977).

This section is patterned after the Illinois long-arm statute and Illinois decisions may be looked to for persuasive guidance in construing it. Southern Idaho Pipe & Steel Co. v. Cal-Cut Pipe & Supply, Inc., 98 Idaho 495, 567 P.2d 1246 (1977), cert. denied and appeal dismissed, 434 U.S. 1056, 98 S. Ct. 1225, 55 L. Ed. 2d 757 (1978).

Subdivision (a) of this section is designed to provide a forum for in-state residents in a world of increasingly complex commercial transactions and, since it is remedial in nature, should be broadly construed. Southern Idaho Pipe & Steel Co. v. Cal-Cut Pipe & Supply, Inc., 98 Idaho 495, 567 P.2d 1246 (1977), cert. denied and appeal dismissed, 434 U.S. 1056, 98 S. Ct. 1225, 55 L. Ed. 2d 757 (1978).

In order for jurisdiction to be obtained over an out-of-state defendant, the act giving rise to the cause of action must fall within the scope of this state’s long-arm jurisdiction and the constitutional standards of due process must be met. Schneider v. Sverdsten Logging Co., 104 Idaho 210, 657 P.2d 1078 (1983).

This section is designed to provide a forum for this state’s residents and is to be liberally construed. Beco Corp. v. Roberts & Sons Constr. Co., 114 Idaho 704, 760 P.2d 1120 (1988), overruled on other grounds by Houghland Farms, Inc. v. Johnson, 119 Idaho 72, 803 P.2d 978 (1990), to the extent it conflicts with Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985).

Construction With Other Law.

This section and§ 49-2421 do not impliedly repeal§ 5-229. Tetzlaff v. Brooks, 130 Idaho 903, 950 P.2d 1242 (1997).

Defendant’s Activities.

The fact that plaintiff’s place of business was in Idaho had no significance in determining whether Idaho may exercise personal jurisdiction over defendant; it is defendant’s activities, not plaintiff’s location, that must be considered. Houghland Farms, Inc. v. Johnson, 119 Idaho 72, 803 P.2d 978 (1990). Trial court erred in denying the Louisiana resident’s motion to dismiss the investors’ Ponzi scheme lawsuit, because he personally did nothing in Idaho which would have come under the purview of the Idaho long-arm statute, and none of the persons who committed the tortious acts or conducted business in Idaho was his agent. Knutsen v. Cloud, 142 Idaho 148, 124 P.3d 1024 (2005).

Divorce.

The Idaho long-arm statute clothes the district courts with sufficient jurisdiction in a divorce action to render an in personam judgment against a nonappearing defendant on issues of child custody, child support, and attorney fees. Baker v. Baker, 100 Idaho 635, 603 P.2d 590 (1979).

In a divorce action, the demand for child support and attorney fees did not “arise out of” the community’s ownership of property in this state; therefore, the presence of community property in this state did not support the exercise of personal jurisdiction. Donaldson v. Donaldson, 111 Idaho 951, 729 P.2d 426 (Ct. App. 1986).

Due Process.

Once plaintiff suing an out-of-state defendant has shown that his cause of action comes within the language of this section, he must meet one other test: would the exercise of jurisdiction by an Idaho court so offend traditional notions of fair play and substantial justice as to violate out-of-state defendant’s constitutional right to due process. Duignan v. A.H. Robins Co., 98 Idaho 134, 559 P.2d 750 (1977).

Where plaintiff had an intrauterine device inserted in California, but the infection occurred in Idaho, the operation occurred in Idaho, and plaintiff, her physician and surgeon were residents of Idaho, the exercise by Idaho of long-arm jurisdiction over the out-of-state manufacturer of the defective intrauterine device did not violate its right to due process. Duignan v. A.H. Robins Co., 98 Idaho 134, 559 P.2d 750 (1977).

Foreign State as Defendant.

A defendant who is subject to the jurisdiction of the state under the “long arm” provisions of this statute is not considered absent from the state within the meaning of§ 5-229. Blankenship v. Myers, 97 Idaho 356, 544 P.2d 314 (1975).

Because jurisdiction refers to the power of a court to decide disputes and to compel parties to come before it, a court in ruling on a motion to dismiss for lack of personal jurisdiction must determine whether it has power to hear the complaint rather than utilize a forum non conveniens analysis. Marco Distrib., Inc. v. Biehl, 97 Idaho 853, 555 P.2d 393 (1976).

Idaho supreme court held personal jurisdiction over state of Washington in tort action by Idaho hospital against Washington where Idaho hospital was required to accept rate established by Washington department of labor and industries for payment of medical services rendered to Washington workers’ compensation claimants. Saint Alphonsus Regional Medical Ctr. v. Washington, 123 Idaho 739, 852 P.2d 491 (1993).

In General.

For the purpose of determining the state with jurisdiction as well as the substantive law which will govern, the state where the injury occurred, and the cause of action thus accrued, is generally the most logical state for adjustment of rights, particularly where there are residents of several different states involved. Doggett v. Electronics Corp. of Am., 93 Idaho 26, 454 P.2d 63 (1969). Trial court erred in denying the Louisiana resident’s motion to dismiss the investors’ Ponzi scheme lawsuit, because he personally did nothing in Idaho which would have come under the purview of the Idaho long-arm statute, and none of the persons who committed the tortious acts or conducted business in Idaho was his agent. Knutsen v. Cloud, 142 Idaho 148, 124 P.3d 1024 (2005).

Divorce.

The Idaho long-arm statute clothes the district courts with sufficient jurisdiction in a divorce action to render an in personam judgment against a nonappearing defendant on issues of child custody, child support, and attorney fees. Baker v. Baker, 100 Idaho 635, 603 P.2d 590 (1979).

In a divorce action, the demand for child support and attorney fees did not “arise out of” the community’s ownership of property in this state; therefore, the presence of community property in this state did not support the exercise of personal jurisdiction. Donaldson v. Donaldson, 111 Idaho 951, 729 P.2d 426 (Ct. App. 1986).

Due Process.

Once plaintiff suing an out-of-state defendant has shown that his cause of action comes within the language of this section, he must meet one other test: would the exercise of jurisdiction by an Idaho court so offend traditional notions of fair play and substantial justice as to violate out-of-state defendant’s constitutional right to due process. Duignan v. A.H. Robins Co., 98 Idaho 134, 559 P.2d 750 (1977).

Where plaintiff had an intrauterine device inserted in California, but the infection occurred in Idaho, the operation occurred in Idaho, and plaintiff, her physician and surgeon were residents of Idaho, the exercise by Idaho of long-arm jurisdiction over the out-of-state manufacturer of the defective intrauterine device did not violate its right to due process. Duignan v. A.H. Robins Co., 98 Idaho 134, 559 P.2d 750 (1977).

Foreign State as Defendant.

A defendant who is subject to the jurisdiction of the state under the “long arm” provisions of this statute is not considered absent from the state within the meaning of§ 5-229. Blankenship v. Myers, 97 Idaho 356, 544 P.2d 314 (1975).

Because jurisdiction refers to the power of a court to decide disputes and to compel parties to come before it, a court in ruling on a motion to dismiss for lack of personal jurisdiction must determine whether it has power to hear the complaint rather than utilize a forum non conveniens analysis. Marco Distrib., Inc. v. Biehl, 97 Idaho 853, 555 P.2d 393 (1976).

Idaho supreme court held personal jurisdiction over state of Washington in tort action by Idaho hospital against Washington where Idaho hospital was required to accept rate established by Washington department of labor and industries for payment of medical services rendered to Washington workers’ compensation claimants. Saint Alphonsus Regional Medical Ctr. v. Washington, 123 Idaho 739, 852 P.2d 491 (1993).

In General.

Intent of Legislature.

For the purpose of determining the state with jurisdiction as well as the substantive law which will govern, the state where the injury occurred, and the cause of action thus accrued, is generally the most logical state for adjustment of rights, particularly where there are residents of several different states involved. Doggett v. Electronics Corp. of Am., 93 Idaho 26, 454 P.2d 63 (1969). Intent of Legislature.

The legislature, in adopting§§ 5-514 — 5-517, intended to exercise all the jurisdiction available to the state of Idaho under the due process clause of the United States constitution. Doggett v. Electronics Corp. of Am., 93 Idaho 26, 454 P.2d 63 (1969).

The fact that a party being sued does not have a physical presence in Idaho does not render subdivision (a) of this section inapplicable since this section is intended to confer all the jurisdiction available under the due process clause of the U.S. Constitution; such jurisdiction having been expanded in modern times to cover contacts with a state which fall far short of physical presence. Southern Idaho Pipe & Steel Co. v. Cal-Cut Pipe & Supply, Inc., 98 Idaho 495, 567 P.2d 1246 (1977), cert. denied and appeal dismissed, 434 U.S. 1056, 98 S. Ct. 1225, 55 L. Ed. 2d 757 (1978).

Jurisdiction Over Nonresident Landowner.

Jurisdiction as to any cause of action arising from ownership, use, or possession of any real property within the state is not restricted solely to actions challenging ownership; thus, the trial court had jurisdiction as to a cause of action against a nonresident landowner for breach of an alleged real estate broker’s employment contract, since there was a substantial connection between ownership of the land and the cause of action. Tandy & Wood, Inc. v. Munnell, 97 Idaho 142, 540 P.2d 804 (1975).

Nonresident Trustee.

Where the plaintiff trust beneficiary filed a complaint alleging jurisdiction pursuant to this section in a court which was not the court of registration for the trust and the defendant trustee consented to in personam jurisdiction with the knowledge that the complaint dealt with administration of the trust, the court had jurisdiction to order that costs and attorney fees not be charged against the trust since the issue of whether the defendant must pay costs and attorney fees was implicitly before the court under Idaho R. Civ. P. 15(b). Rasmuson v. Walker Bank & Trust Co., 102 Idaho 95, 625 P.2d 1098 (1981).

Parent Corporation.

Since stock ownership in itself was not sufficient to charge the parent company with responsibility for acts of the subsidiary, a federal district court did not have personal jurisdiction under this section over parent Utah corporation in suit for trademark infringement and unfair competition, where there was no evidence that the Utah corporation controlled the Washington subsidiary’s advertising campaign and where the Utah corporation did not commit any act or consummate any transaction in Idaho from which plaintiff’s cause of action arose. Idaho Potato Comm’n v. Washington Potato Comm’n, 410 F. Supp. 171 (D. Idaho 1975).

Personal Jurisdiction.

— Factors to Establish.

Intent of Legislature.

In suit against ex-wife and her attorney alleging numerous tort claims against the parties involved in taking custody of child where defendant attorney allegedly had known for 16 months that child was in Idaho before he obtained ex parte custody order in California in order that such order could be used in Idaho to obtain assistance of Idaho law and officials in obtaining custody of child and where alleged injury to plaintiffs arose out of his acts in procuring such order, Idaho assertion of jurisdiction over defendant was within accord with the constitutional principals of due process and defendant’s conduct in procuring such order for use in Idaho was sufficient to establish personal jurisdiction over him. Lake v. Lake, 817 F.2d 1416 (9th Cir. 1987). Intent of Legislature.

The legislature, in adopting§§ 5-514 — 5-517, intended to exercise all the jurisdiction available to the state of Idaho under the due process clause of the United States constitution. Doggett v. Electronics Corp. of Am., 93 Idaho 26, 454 P.2d 63 (1969).

The fact that a party being sued does not have a physical presence in Idaho does not render subdivision (a) of this section inapplicable since this section is intended to confer all the jurisdiction available under the due process clause of the U.S. Constitution; such jurisdiction having been expanded in modern times to cover contacts with a state which fall far short of physical presence. Southern Idaho Pipe & Steel Co. v. Cal-Cut Pipe & Supply, Inc., 98 Idaho 495, 567 P.2d 1246 (1977), cert. denied and appeal dismissed, 434 U.S. 1056, 98 S. Ct. 1225, 55 L. Ed. 2d 757 (1978).

Jurisdiction Over Nonresident Landowner.

Jurisdiction as to any cause of action arising from ownership, use, or possession of any real property within the state is not restricted solely to actions challenging ownership; thus, the trial court had jurisdiction as to a cause of action against a nonresident landowner for breach of an alleged real estate broker’s employment contract, since there was a substantial connection between ownership of the land and the cause of action. Tandy & Wood, Inc. v. Munnell, 97 Idaho 142, 540 P.2d 804 (1975).

Nonresident Trustee.

Where the plaintiff trust beneficiary filed a complaint alleging jurisdiction pursuant to this section in a court which was not the court of registration for the trust and the defendant trustee consented to in personam jurisdiction with the knowledge that the complaint dealt with administration of the trust, the court had jurisdiction to order that costs and attorney fees not be charged against the trust since the issue of whether the defendant must pay costs and attorney fees was implicitly before the court under Idaho R. Civ. P. 15(b). Rasmuson v. Walker Bank & Trust Co., 102 Idaho 95, 625 P.2d 1098 (1981).

Parent Corporation.

Since stock ownership in itself was not sufficient to charge the parent company with responsibility for acts of the subsidiary, a federal district court did not have personal jurisdiction under this section over parent Utah corporation in suit for trademark infringement and unfair competition, where there was no evidence that the Utah corporation controlled the Washington subsidiary’s advertising campaign and where the Utah corporation did not commit any act or consummate any transaction in Idaho from which plaintiff’s cause of action arose. Idaho Potato Comm’n v. Washington Potato Comm’n, 410 F. Supp. 171 (D. Idaho 1975).

Personal Jurisdiction.

— Factors to Establish.

In suit against ex-wife and her attorney alleging numerous tort claims against the parties involved in taking custody of child where defendant attorney allegedly had known for 16 months that child was in Idaho before he obtained ex parte custody order in California in order that such order could be used in Idaho to obtain assistance of Idaho law and officials in obtaining custody of child and where alleged injury to plaintiffs arose out of his acts in procuring such order, Idaho assertion of jurisdiction over defendant was within accord with the constitutional principals of due process and defendant’s conduct in procuring such order for use in Idaho was sufficient to establish personal jurisdiction over him. Lake v. Lake, 817 F.2d 1416 (9th Cir. 1987). Where activities by the principals of a joint venture as agents of each other were business transactions meant to further the joint venture’s pecuniary interest, the statutory basis for personal jurisdiction over defendant, who was a principal of the joint venture, was established. State Dep’t of Fin. v. Tenney, 124 Idaho 243, 858 P.2d 782 (Ct. App. 1993).

The exercise of personal jurisdiction by Idaho courts over an out-of-state limited liability company (LLC) was proper where, by contracting with an in-state company, after being notified of the company’s presence in Idaho and of the company’s desire to perform contractual duties there, the LLC purposefully availed itself of the benefits and protection of Idaho laws. H2O Envtl. Inc. v. Proimtu MMI, LLC, 162 Idaho 368, 397 P.3d 398 (2017).

In order for an Idaho court to exert jurisdiction over an out-of-state defendant, two criteria must be met; the act giving rise to the cause of action must fall within the scope of this section and the constitutional standards of due process must be met. H2O Envtl. Inc. v. Proimtu MMI, LLC, 162 Idaho 368, 397 P.3d 398 (2017).

— Failure to Establish.

Where federal district court had jurisdiction over Washington state agency in suit brought by Idaho state agency for trademark infringement and for unfair competition, the court did not have personal jurisdiction over the Washington agency’s individual members who were never physically present in Idaho. Idaho Potato Comm’n v. Washington Potato Comm’n, 410 F. Supp. 171 (D. Idaho 1975).

The following acts were not enough to establish personal jurisdiction over broker because they do not show he purposefully availed himself of privilege of conducting activities within the state: 1) corporation for whom broker was procuring loan had principal place of business in state; 2) broker acquired statistical information from banks in state; 3) broker visited state to overlook land to be used as security; and 4) the final loan proposal was secured by land outside the state. Houghland Farms, Inc. v. Johnson, 119 Idaho 72, 803 P.2d 978 (1990).

Where state’s only interest was that plaintiff was a resident of Idaho, it would violate due process to subject the department of social services of another state, Missouri, and its employees, to Idaho’s jurisdiction, even on the limited issue of enjoining them from falsely reporting to third parties that the plaintiff is indebted for child support. Smalley v. Kaiser, 130 Idaho 909, 950 P.2d 1248 (1997).

— Procedure.

For Idaho courts to have personal jurisdiction, an act must fall within Idaho’s long arm statute and due process rights must not be offended. Idaho has held that defamatory matter published in the due course of a judicial proceeding, having some reasonable relation to the cause, is absolutely privileged and will not support a civil action for defamation. The privilege applies even if the defamatory statements were made maliciously and with knowledge of its falsity. The term judicial proceeding is not restricted to trials, but includes every proceeding of a judicial nature before a court or official clothed with judicial or quasi-judicial power. Dickinson Frozen Foods, Inc. v. J.R. Simplot Co., 164 Idaho 669, 434 P.3d 1275 (2019). — Procedure.

In the absence of personal jurisdiction, service of process under this section is ineffective. Donaldson v. Donaldson, 111 Idaho 951, 729 P.2d 426 (Ct. App. 1986).

Where defendant could have raised the defense of lack of jurisdiction over his person by a pre-answer motion or in the answer itself, his failure to so raise the defense of lack of jurisdiction over his person constituted a waiver of that defense. Quintana v. Quintana, 119 Idaho 1, 802 P.2d 488 (Ct. App. 1990).

A resident of the state could not rely on section 7-1004 to argue that the trial court lacked personal jurisdiction over him, since that section defines the basis for the exercise of personal jurisdiction over nonresidents in proceedings to establish, enforce, or modify a support order or to determine parentage. State Dep’t of Health & Welfare ex rel. Oregon v. Conley, 132 Idaho 266, 971 P.2d 332 (Ct. App. 1999).

Products Liability.

If dangerously defective goods are placed in the interstate flow of commerce, those whose negligence created the defect should be prepared to defend themselves wherever injury should occur. Doggett v. Electronics Corp. of Am., 93 Idaho 26, 454 P.2d 63 (1969); Duignan v. A.H. Robins Co., 98 Idaho 134, 559 P.2d 750 (1977).

In action for injuries sustained due to explosion of tire sold by defendant foreign corporation in business of selling tires to retailers in the state, trial court erred in granting summary judgment to defendant on grounds that statute of limitations had run and had not been tolled under§ 5-229; plaintiff should have been given the opportunity to show that reasonably diligent efforts had been made to serve the defendant without success so that the statute of limitations had been tolled. Lipe v. Javelin Tire Co., 96 Idaho 723, 536 P.2d 291 (1975).

Where an insurer sued an aircraft parts manufacturer in strict liability or negligence for selling defective switches causing an aircraft to crash, and the manufacturer sold products solely to a non-forum state aircraft builder, knowing that the aircraft were distributed nationally and specifically in the forum state, the court adopted the insurer’s version of facts, construed its allegations in a light most favorable to the insurer, and noted the remedial nature of the statute, and found that the insurer showed a prima facie case of jurisdiction under subsection (b). Nat’l Union Fire Ins. Co. v. Aerohawk Aviation, Inc., 259 F. Supp. 2d 1096 (D. Idaho 2003).

Purpose.

The purpose of the legislature in including divorce actions as being within the purview of the long-arm statute was to extend the in personam jurisdiction of the courts of this state in divorce cases over those defendants who were maintaining matrimonial domicile in this state when the cause of action for divorce arose. Baker v. Baker, 100 Idaho 635, 603 P.2d 590 (1979).

The intent of the legislature when enacting this section was to grant state courts all personal jurisdiction available under the due process clause of the United States Constitution. Donaldson v. Donaldson, 111 Idaho 951, 729 P.2d 426 (Ct. App. 1986).

The Idaho legislature, in adopting this section, intended to exercise all the jurisdiction available to the State of Idaho under the due process clause of the United States Constitution; thus, the state and federal limits are coextensive. Lake v. Lake, 817 F.2d 1416 (9th Cir. 1987).

Required Contact.

One contact with Idaho consisting of out-of-state manufacture by out-of-state defendants of boiler components which injured plaintiff in Idaho was sufficient to give Idaho jurisdiction over such defendants in ensuing tort action. Doggett v. Electronics Corp. of Am., 93 Idaho 26, 454 P.2d 63 (1969).

Where plaintiff, while resident of South Dakota, was treated by South Dakota doctor and, after she moved to Idaho, the doctor sent copies of original prescriptions to her in Idaho, the alleged injury by use of drugs did not constitute commission of tort by the doctor within the state of Idaho which would confer jurisdiction under this section. Wright v. Yackley, 459 F.2d 287 (9th Cir. 1972).

For jurisdiction, the physical presence of an out-of-state corporation is not required if an independent contractor representing the out-of-state corporation in the transaction sued upon has been physically present in the state. Intermountain Bus. Forms, Inc. v. Shepard Bus. Forms Co., 96 Idaho 538, 531 P.2d 1183 (1975).

Where the defendant Pennsylvania corporation carried on no activity whatsoever in Idaho and did not even conduct business with an Idaho corporation or resident, the mere fact that the corporation once sold a helicopter to a second Pennsylvania corporation and the helicopter was later purchased by an Idaho corporation and ultimately killed an Idaho resident did not constitute “minimum contacts” within the state of Idaho; and therefore, due process prohibited the exercise of in personam jurisdiction over the defendant corporation. Schneider v. Sverdsten Logging Co., 104 Idaho 210, 657 P.2d 1078 (1983).

Where the evidence showed that the defendant Pennsylvania corporation, whose business was servicing helicopters, had no agents in the state of Idaho, that it had never done business in Idaho, that it had injected no products into the interstate “stream of commerce,” and that it had not attempted to serve an Idaho market by means of its advertising, the defendant corporation had insufficient contacts with the state of Idaho for an Idaho court to exercise in personam jurisdiction over it consistent with due process principles. Schneider v. Sverdsten Logging Co., 104 Idaho 210, 657 P.2d 1078 (1983).

The out-of-state defendant corporation had sufficient minimum contacts with this state such that the assertion of jurisdiction was fair, where the defendant deliberately reached out to negotiate with a corporation in this state and executed a contract which established a relationship of some months with the plaintiff, and compelling trial in this state 200 miles from the county seat of the defendant’s home office was not unreasonable. Beco Corp. v. Roberts & Sons Constr. Co., 114 Idaho 704, 760 P.2d 1120 (1988), overruled on other grounds by Houghland Farms, Inc. v. Johnson, 119 Idaho 72, 803 P.2d 978 (1990), to the extent it conflicts with Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985).

Mere personal presence in Idaho at one time is not sufficient in and of itself to form the basis for the exercise of specific personal jurisdiction over a person who is later served process outside the state; here there were not sufficient other activities of defendant in Idaho to be enhanced by this one isolated event. Houghland Farms, Inc. v. Johnson, 119 Idaho 72, 803 P.2d 978 (1990).

Tortious Act Within State.

Where plaintiff was injured in Idaho when boiler exploded due to failure of one or both of two components, each manufactured out-of-state by an out-of-state defendant, Idaho court correctly assumed jurisdiction over the cause, notwithstanding only the injury, and not the other aspects of the tortious act, occurred in Idaho. Doggett v. Electronics Corp. of Am., 93 Idaho 26, 454 P.2d 63 (1969). One contact with Idaho consisting of out-of-state manufacture by out-of-state defendants of boiler components which injured plaintiff in Idaho was sufficient to give Idaho jurisdiction over such defendants in ensuing tort action. Doggett v. Electronics Corp. of Am., 93 Idaho 26, 454 P.2d 63 (1969).

Where plaintiff, while resident of South Dakota, was treated by South Dakota doctor and, after she moved to Idaho, the doctor sent copies of original prescriptions to her in Idaho, the alleged injury by use of drugs did not constitute commission of tort by the doctor within the state of Idaho which would confer jurisdiction under this section. Wright v. Yackley, 459 F.2d 287 (9th Cir. 1972).

For jurisdiction, the physical presence of an out-of-state corporation is not required if an independent contractor representing the out-of-state corporation in the transaction sued upon has been physically present in the state. Intermountain Bus. Forms, Inc. v. Shepard Bus. Forms Co., 96 Idaho 538, 531 P.2d 1183 (1975).

Where the defendant Pennsylvania corporation carried on no activity whatsoever in Idaho and did not even conduct business with an Idaho corporation or resident, the mere fact that the corporation once sold a helicopter to a second Pennsylvania corporation and the helicopter was later purchased by an Idaho corporation and ultimately killed an Idaho resident did not constitute “minimum contacts” within the state of Idaho; and therefore, due process prohibited the exercise of in personam jurisdiction over the defendant corporation. Schneider v. Sverdsten Logging Co., 104 Idaho 210, 657 P.2d 1078 (1983).

Where the evidence showed that the defendant Pennsylvania corporation, whose business was servicing helicopters, had no agents in the state of Idaho, that it had never done business in Idaho, that it had injected no products into the interstate “stream of commerce,” and that it had not attempted to serve an Idaho market by means of its advertising, the defendant corporation had insufficient contacts with the state of Idaho for an Idaho court to exercise in personam jurisdiction over it consistent with due process principles. Schneider v. Sverdsten Logging Co., 104 Idaho 210, 657 P.2d 1078 (1983).

The out-of-state defendant corporation had sufficient minimum contacts with this state such that the assertion of jurisdiction was fair, where the defendant deliberately reached out to negotiate with a corporation in this state and executed a contract which established a relationship of some months with the plaintiff, and compelling trial in this state 200 miles from the county seat of the defendant’s home office was not unreasonable. Beco Corp. v. Roberts & Sons Constr. Co., 114 Idaho 704, 760 P.2d 1120 (1988), overruled on other grounds by Houghland Farms, Inc. v. Johnson, 119 Idaho 72, 803 P.2d 978 (1990), to the extent it conflicts with Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985).

Mere personal presence in Idaho at one time is not sufficient in and of itself to form the basis for the exercise of specific personal jurisdiction over a person who is later served process outside the state; here there were not sufficient other activities of defendant in Idaho to be enhanced by this one isolated event. Houghland Farms, Inc. v. Johnson, 119 Idaho 72, 803 P.2d 978 (1990).

Tortious Act Within State.

Where plaintiff was injured in Idaho when boiler exploded due to failure of one or both of two components, each manufactured out-of-state by an out-of-state defendant, Idaho court correctly assumed jurisdiction over the cause, notwithstanding only the injury, and not the other aspects of the tortious act, occurred in Idaho. Doggett v. Electronics Corp. of Am., 93 Idaho 26, 454 P.2d 63 (1969). Where a buyer alleged facts such that, if proven, would entitle him to recover for fraud against an Oregon automobile dealer, but the sales contract was entered into and the vehicle tendered and accepted in Oregon, buyer’s injury resulting from fraudulent misrepresentation occurred in Oregon, and such dealer was not subject to the jurisdiction of Idaho courts under this section on the theory that he had committed the tort of fraud within Idaho. Akichika v. Kelleher, 96 Idaho 930, 539 P.2d 283 (1975).

Where plaintiff alleged that she had an intrauterine device inserted in California which resulted in an infection after she had moved to Idaho which necessitated the removal of a fallopian tube, the operation having been performed in Idaho, the facts alleged were sufficient to bring the manufacturer of the intrauterine device within the jurisdiction of the Idaho courts on the grounds that it had allegedly committed a “tortious act within this state.” Duignan v. A.H. Robins Co., 98 Idaho 134, 559 P.2d 750 (1977).

The fact that an injury has occurred in the state of Idaho in an allegedly tortious manner is sufficient to invoke the “tortious act” language of subdivision (b) of this section. Schneider v. Sverdsten Logging Co., 104 Idaho 210, 657 P.2d 1078 (1983).

District court had long-arm personal jurisdiction over a Maine-based company, and it’s manager, for claims by a customer in Idaho alleging fraud, breach of the implied warranty of merchantability, and breach of an express warranty. Despite defendants’ argument that they were never physically in Idaho and could not have acted within the state, the allegedly fraudulent representations were directed at an Idaho resident and the injury occurred in Idaho. Blimka v. My Web Wholesaler, LLC., 143 Idaho 723, 152 P.3d 594 (2007).

Because two out-of-state law firms had not committed any tort within Idaho, their alleged defamatory statements were made in complaints filed in an out-of-state lawsuit, the requiremnts of this section were not satisfied, and an Idaho court did not have personal jurisdiction over the firms. Dickinson Frozen Foods, Inc. v. J.R. Simplot Co., — Idaho —, — P.3d —, 2019 Ida. LEXIS 81 (May 3, 2019).

Transaction of Business Within State.

An airplane manufacturer who appointed regional distributors, who contracted with dealers within the state, who sold the manufacturer’s products and delivered to the purchasers the manufacturer’s warranty and who was required to conform to certain accounting standards and advertising programs prescribed by the manufacturer and maintain a supply of parts and tolls for servicing the manufacturer’s products was transacting business within the state within the meaning of this section. B.B.P. Ass’n v. Cessna Aircraft Co., 91 Idaho 259, 420 P.2d 134 (1966).

Where plaintiff while resident of South Dakota was treated by South Dakota doctor and, after she moved to Idaho, act of furnishing of copies of original prescriptions to her without charge did not constitute the transaction of business within the state of Idaho such as to confer jurisdiction under this section. Wright v. Yackley, 459 F.2d 287 (9th Cir. 1972).

Where an Oregon automobile dealer advertised a truck in an Oregon newspaper and entered into a sales contract with an Idaho buyer whereby the truck was tendered and accepted in Oregon, the dealer was not transacting business within Idaho for purposes of this section, even though buyer made a phone call from Idaho inquiring about the truck, dealer used an Idaho bank as an agent for transfer of title, and dealer attempted to repossess the truck in Idaho. Akichika v. Kelleher, 96 Idaho 930, 539 P.2d 283 (1975).

In an action on a promissory note executed by an officer of a Michigan corporation, the officer’s actions on behalf of the corporation were attributed to him individually, both for purposes of liability and jurisdiction, in the absence of a disclosure by him before execution of the note that he acted as agent for the corporation. Marco Distrib., Inc. v. Biehl, 97 Idaho 853, 555 P.2d 393 (1976). Where a buyer alleged facts such that, if proven, would entitle him to recover for fraud against an Oregon automobile dealer, but the sales contract was entered into and the vehicle tendered and accepted in Oregon, buyer’s injury resulting from fraudulent misrepresentation occurred in Oregon, and such dealer was not subject to the jurisdiction of Idaho courts under this section on the theory that he had committed the tort of fraud within Idaho. Akichika v. Kelleher, 96 Idaho 930, 539 P.2d 283 (1975).

Where plaintiff alleged that she had an intrauterine device inserted in California which resulted in an infection after she had moved to Idaho which necessitated the removal of a fallopian tube, the operation having been performed in Idaho, the facts alleged were sufficient to bring the manufacturer of the intrauterine device within the jurisdiction of the Idaho courts on the grounds that it had allegedly committed a “tortious act within this state.” Duignan v. A.H. Robins Co., 98 Idaho 134, 559 P.2d 750 (1977).

The fact that an injury has occurred in the state of Idaho in an allegedly tortious manner is sufficient to invoke the “tortious act” language of subdivision (b) of this section. Schneider v. Sverdsten Logging Co., 104 Idaho 210, 657 P.2d 1078 (1983).

District court had long-arm personal jurisdiction over a Maine-based company, and it’s manager, for claims by a customer in Idaho alleging fraud, breach of the implied warranty of merchantability, and breach of an express warranty. Despite defendants’ argument that they were never physically in Idaho and could not have acted within the state, the allegedly fraudulent representations were directed at an Idaho resident and the injury occurred in Idaho. Blimka v. My Web Wholesaler, LLC., 143 Idaho 723, 152 P.3d 594 (2007).

Because two out-of-state law firms had not committed any tort within Idaho, their alleged defamatory statements were made in complaints filed in an out-of-state lawsuit, the requiremnts of this section were not satisfied, and an Idaho court did not have personal jurisdiction over the firms. Dickinson Frozen Foods, Inc. v. J.R. Simplot Co., — Idaho —, — P.3d —, 2019 Ida. LEXIS 81 (May 3, 2019).

Transaction of Business Within State.

An airplane manufacturer who appointed regional distributors, who contracted with dealers within the state, who sold the manufacturer’s products and delivered to the purchasers the manufacturer’s warranty and who was required to conform to certain accounting standards and advertising programs prescribed by the manufacturer and maintain a supply of parts and tolls for servicing the manufacturer’s products was transacting business within the state within the meaning of this section. B.B.P. Ass’n v. Cessna Aircraft Co., 91 Idaho 259, 420 P.2d 134 (1966).

Where plaintiff while resident of South Dakota was treated by South Dakota doctor and, after she moved to Idaho, act of furnishing of copies of original prescriptions to her without charge did not constitute the transaction of business within the state of Idaho such as to confer jurisdiction under this section. Wright v. Yackley, 459 F.2d 287 (9th Cir. 1972).

Where an Oregon automobile dealer advertised a truck in an Oregon newspaper and entered into a sales contract with an Idaho buyer whereby the truck was tendered and accepted in Oregon, the dealer was not transacting business within Idaho for purposes of this section, even though buyer made a phone call from Idaho inquiring about the truck, dealer used an Idaho bank as an agent for transfer of title, and dealer attempted to repossess the truck in Idaho. Akichika v. Kelleher, 96 Idaho 930, 539 P.2d 283 (1975).

In an action on a promissory note executed by an officer of a Michigan corporation, the officer’s actions on behalf of the corporation were attributed to him individually, both for purposes of liability and jurisdiction, in the absence of a disclosure by him before execution of the note that he acted as agent for the corporation. Marco Distrib., Inc. v. Biehl, 97 Idaho 853, 555 P.2d 393 (1976). Where a California corporation had solicited business in Idaho, by means of mail or telephone advertising, for a least 10 years, thereby actively initiating sales transactions with state residents, such corporation had transacted business within the meaning of subdivision (a) of this section and was within the jurisdiction of Idaho courts despite the fact that deliveries of goods were made in California rather than Idaho. Southern Idaho Pipe & Steel Co. v. Cal-Cut Pipe & Supply, Inc., 98 Idaho 495, 567 P.2d 1246 (1977), cert. denied and appeal dismissed, 434 U.S. 1056, 98 S. Ct. 1225, 55 L. Ed. 2d 757 (1978).

Where, in action for breach of contract, warranty and tort duties in manufacture of concrete pouring equipment and forms, it was shown that one defendant sent a service technician to Idaho work site for three days and that the other defendant gave plaintiff instructions in Idaho and its field representative spent a week there conducting tests and making representations in connection with defendant’s business, including ordering a new form, the transfer of the entire case to the United States district court in Idaho was proper since all of the events and most of the contract giving rise to the claim occurred in Idaho so that jurisdiction over the person of both defendants was established. Apex Constr., Inc. v. Huron Mfg. Corp., 506 F. Supp. 20 (E.D. Wash. 1980).

Under subdivision (a) of this section, a person is subject to personal jurisdiction in the Idaho state court if he conducts business within the state and the alleged cause of action arises from that conduct of business. Kendall v. Overseas Dev. Corp., 700 F.2d 536 (9th Cir. 1983).

The defendant’s conduct of negotiating a contract price with the plaintiff agreeing that the plaintiff should draft the agreement, executing the document over the plaintiff’s signature, and mailing the contract back to this state fell within the definition of “transaction of any business within this state”; and the fact that the defendant maintained no physical presence in this state did not affect the applicability of this section. Beco Corp. v. Roberts & Sons Constr. Co., 114 Idaho 704, 760 P.2d 1120 (1988), overruled on other grounds by Houghland Farms, Inc. v. Johnson, 119 Idaho 72, 803 P.2d 978 (1990), to the extent of conflict with Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985).

The acquisition of statistical information by out-of-state defendant loan company, concerning plaintiff corporation, from various banks in Idaho, had no significance in determining whether defendant invoked the benefits and protections of the laws of Idaho, nor did the fact that defendant visited plaintiff’s Idaho properties to be able more fully to acquaint himself with the security that would be offered for a potential loan have any such significance. Houghland Farms, Inc. v. Johnson, 119 Idaho 72, 803 P.2d 978 (1990).

Shareholders in Utah corporation involved in purchasing cattle did not conduct business in Idaho, within the meaning of this section merely by the fact that seller was located in Idaho or by a phone call initiated by the seller in which buyer allegedly guaranteed payment. Mann v. High Country Meats, Inc., 125 Idaho 357, 870 P.2d 1316 (1994).

Based on the corporation’s purposefully directed activities in Idaho, the exercise of jurisdiction over the corporation by the director of the department of finance in issuing the cease and desist order was consistent with fair play, and Idaho had personal jurisdiction over the corporation. PurCo Fleet Servs. v. Idaho State Dep’t of Fin., 140 Idaho 121, 90 P.3d 346 (2004).

Personal jurisdiction was properly asserted over a Tennessee supplier in an Idaho store’s breach of contract suit because the supplier purposefully availed itself of doing business in Idaho. All of its contractual obligations were performed there, including submission of weekly invoices and insurance certificates, as well as compliance with a contractual performance review obligation. Albertson’s LLC v. Kleen-Sweep Janitorial Co., 2009 U.S. Dist. LEXIS 105088 (D. Idaho Nov. 9, 2009). Where a California corporation had solicited business in Idaho, by means of mail or telephone advertising, for a least 10 years, thereby actively initiating sales transactions with state residents, such corporation had transacted business within the meaning of subdivision (a) of this section and was within the jurisdiction of Idaho courts despite the fact that deliveries of goods were made in California rather than Idaho. Southern Idaho Pipe & Steel Co. v. Cal-Cut Pipe & Supply, Inc., 98 Idaho 495, 567 P.2d 1246 (1977), cert. denied and appeal dismissed, 434 U.S. 1056, 98 S. Ct. 1225, 55 L. Ed. 2d 757 (1978).

Where, in action for breach of contract, warranty and tort duties in manufacture of concrete pouring equipment and forms, it was shown that one defendant sent a service technician to Idaho work site for three days and that the other defendant gave plaintiff instructions in Idaho and its field representative spent a week there conducting tests and making representations in connection with defendant’s business, including ordering a new form, the transfer of the entire case to the United States district court in Idaho was proper since all of the events and most of the contract giving rise to the claim occurred in Idaho so that jurisdiction over the person of both defendants was established. Apex Constr., Inc. v. Huron Mfg. Corp., 506 F. Supp. 20 (E.D. Wash. 1980).

Under subdivision (a) of this section, a person is subject to personal jurisdiction in the Idaho state court if he conducts business within the state and the alleged cause of action arises from that conduct of business. Kendall v. Overseas Dev. Corp., 700 F.2d 536 (9th Cir. 1983).

The defendant’s conduct of negotiating a contract price with the plaintiff agreeing that the plaintiff should draft the agreement, executing the document over the plaintiff’s signature, and mailing the contract back to this state fell within the definition of “transaction of any business within this state”; and the fact that the defendant maintained no physical presence in this state did not affect the applicability of this section. Beco Corp. v. Roberts & Sons Constr. Co., 114 Idaho 704, 760 P.2d 1120 (1988), overruled on other grounds by Houghland Farms, Inc. v. Johnson, 119 Idaho 72, 803 P.2d 978 (1990), to the extent of conflict with Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985).

The acquisition of statistical information by out-of-state defendant loan company, concerning plaintiff corporation, from various banks in Idaho, had no significance in determining whether defendant invoked the benefits and protections of the laws of Idaho, nor did the fact that defendant visited plaintiff’s Idaho properties to be able more fully to acquaint himself with the security that would be offered for a potential loan have any such significance. Houghland Farms, Inc. v. Johnson, 119 Idaho 72, 803 P.2d 978 (1990).

Shareholders in Utah corporation involved in purchasing cattle did not conduct business in Idaho, within the meaning of this section merely by the fact that seller was located in Idaho or by a phone call initiated by the seller in which buyer allegedly guaranteed payment. Mann v. High Country Meats, Inc., 125 Idaho 357, 870 P.2d 1316 (1994).

Based on the corporation’s purposefully directed activities in Idaho, the exercise of jurisdiction over the corporation by the director of the department of finance in issuing the cease and desist order was consistent with fair play, and Idaho had personal jurisdiction over the corporation. PurCo Fleet Servs. v. Idaho State Dep’t of Fin., 140 Idaho 121, 90 P.3d 346 (2004).

Personal jurisdiction was properly asserted over a Tennessee supplier in an Idaho store’s breach of contract suit because the supplier purposefully availed itself of doing business in Idaho. All of its contractual obligations were performed there, including submission of weekly invoices and insurance certificates, as well as compliance with a contractual performance review obligation. Albertson’s LLC v. Kleen-Sweep Janitorial Co., 2009 U.S. Dist. LEXIS 105088 (D. Idaho Nov. 9, 2009). Where there is no applicable federal statute governing personal jurisdiction, the law of the state in which the district court sits applies. Because this section allows a broader application of personal jurisdiction than the Due Process Clause, the court need look only to the Due Process Clause to determine personal jurisdiction. Wells Cargo, Inc. v. Transp. Ins. Co., 676 F. Supp. 2d 1114 (D. Idaho 2009).

State’s exercise of personal jurisdiction over a native American cigarette retailer fully complied with due process; where the retailer’s importation of 100 million non-compliant cigarettes satisfied the requirements of the long-arm statute and the retailer was conducting business in the state, even though it was selling only to a company owned by a member of a Native American tribe. State v. Native Wholesale Supply Co., 155 Idaho 337, 312 P.3d 1257 (2013).

Am. Jur. 2d.

ALR.

Use of goods: Applicability, to actions not based on product’s liability, of state’s statutes or rules of court predicating in personam jurisdiction over foreign manufacturers or distributors upon use of their goods within state. 20 A.L.R.3d 957.

Validity, as a matter of due process, of state statutes or rules of court conferring in personam jurisdiction over nonresidents or foreign corporations on the basis of isolated business transaction within state. 20 A.L.R.3d 1201.

Construction and application of state statutes or rules of court predicating in personam jurisdiction over nonresidents or foreign corporations on making or performing a contract within the state. 23 A.L.R.3d 551.

Contracts: Construction and application of state statutes or rules of court predicating in personam jurisdiction over nonresidents or foreign corporations on making or performing a contract within the state. 23 A.L.R.3d 551. Tort: Construction and application of state statutes or rules of court predicating in personam jurisdiction over nonresidents or foreign corporations on the commission of a tort within this state. 24 A.L.R.3d 532.

Construction and application, as to isolated acts or transactions, of state statutes or rules of court predicating in personam jurisdiction over nonresidents or foreign corporations upon the doing of an act, or upon doing or transacting business or “any” business, within the state. 27 A.L.R.3d 397.

Nonresidential parent: Obtaining jurisdiction over nonresident parent in filiation or support proceeding. 76 A.L.R.3d 708.

In personam jurisdiction, under long-arm statute, over nonresident attorney in legal malpractice action. 78 A.L.R.6th 151.

Cross References.

Service of process, procedure, Idaho R. Civ. P. 4.

Compiler’s Notes.

The term “herein” in this section refers to S.L. 1961, ch. 153, which is codified as§§ 5-514 to 5-517.

Action of Manufacturer’s Warranty.

A manufacturer whose products, warranted by it, are sold in the state may be subjected to jurisdiction of the courts of the state in an action on such warranty by service of process as prescribed by this section. B.B.P. Ass’n v. Cessna Aircraft Co., 91 Idaho 259, 420 P.2d 134 (1966).

Husband in Divorce.

Where service of process upon the husband was made at a time when he was subject to the jurisdiction of the courts of this state, the service of process made upon him in Oregon had the same force and effect as though summons had been personally served within this state. Baker v. Baker, 100 Idaho 635, 603 P.2d 590 (1979).

Am. Jur. 2d.

C.J.S.

Compiler’s Notes.

The term “herein” in this section refers to S.L. 1961, ch. 153, which is codified as§§ 5-514 to 5-517.

Extent of Jurisdiction.

Jurisdiction acquired on the basis of a tort cannot be utilized to settle all differences between the parties; each cause of action must stand or fall on its own jurisdictional merits. Doggett v. Electronics Corp. of Am., 93 Idaho 26, 454 P.2d 63 (1969).

Compiler’s Notes.

The term “herein” in this section refers to S.L. 1961, ch. 153, which is codified as§§ 5-514 to 5-517.

Effective Dates.

Section 5 of S.L. 1961, ch. 153 declared an emergency. Approved March 11, 1961.

ALR.

§ 5-518. Service of process in child support matters.

Service of process in an action to establish or enforce a support obligation may be made in the manner prescribed for service of process in a civil action by a duly authorized process server, or by certified mail, return receipt requested. Any uninterested party over the age of eighteen (18) including, but not necessarily limited to, employees of the bureau of child support enforcement [bureau of child support services] and employees of the county prosecuting attorney’s office, may serve such process. For the purposes of this section, service by mail shall be completed upon the obligor’s receipt of such certified mail. The party or attorney making service by certified mail shall make a return certificate indicating that he complied with the provisions of this statute and attaching a receipt of the mailing signed by the obligor.

History.

I.C.,§ 5-518, as added by 1987, ch. 36, § 1, p. 59.

Compiler’s Notes.

The bracketed insertion was added by the compiler to update the state agency name. See https://healthandwelfare.idaho.gov/Children/ChildSupportServices/tabid/297 5/Default.aspx .

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 226; R.S., R.C., & C.L., § 4160; C.S., § 6683; I.C.A.,§ 5-601, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975.

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 227; R.S., R.C., & C.L., § 4161; C.S., § 6684; I.C.A.,§ 5-602, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho Civil Procedure Rules 1(a) to 1(c), 7(a), 12(b).

Compiler’s Notes.

These sections, which comprised C.C.P. 1881, §§ 228, 229; R.S., R.C., & C.L., §§ 4162, 4167; C.S., §§ 6685, 6686; I.C.A.,§§ 5-603, 5-604, were repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho Civil Procedure Rules 7(a), 7(c), 12(b).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 230; R.S., R.C., & C.L., § 4168; C.S., § 6687; I.C.A.,§ 5-605, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho Civil Procedure Rules 7(b)(2), 8(a)(1), 8(e)(1), 8(e)(2), 9(b), 9(g).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 231; R.S. & R.C., § 4169; am. 1913, ch. 23, § 1, p. 92; reen. C.L., § 4169; C.S., § 6688; I.C.A.,§ 5-606, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho Civil Procedure Rules 8(e)(2), 10(b), 18(a).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 232; R.S., R.C., & C.L., § 4174; C.S., § 6689; I.C.A.,§ 5-607, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule see, Idaho Civil Procedure Rules 7(a), 7(c), 8(e)(2), 9(a), 12(b), 12(d), 12(e), 21.

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 233; R.S., R.C., & C.L., § 4175; C.S., § 6690; I.C.A.,§ 5-608, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho Civil Procedure Rules 7(c), 12(b), 12(e), 12(g).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 234; R.S., R.C., & C.L., § 4176; C.S., § 6691; I.C.A.,§ 5-609, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho Civil Procedure Rules 12(a), 15(a).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 235; R.S., R.C., & C.L., § 4177; C.S., § 6692; I.C.A.,§ 5-610, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho Civil Procedure Rules 7(c), 8(b), 8(c), 9(a), 12(b).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 236; R.S., R.C., & C.L., § 4178; C.S., § 6693; I.C.A.,§ 5-611, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho Civil Procedure Rules 7(c), 9(a), 12(b), 12(g), 12(h).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 237; R.S., R.C., & C.L., § 4183; C.S., § 6694; am. 1925, ch. 10, § 1, p. 12; I.C.A.,§ 5-612, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho Civil Procedure Rules 7(a), 8(b), 8(c), 9(b), 12(b), 13(a), 18(a).

Compiler’s Notes.

These sections, which comprised C.C.P. 1881, §§ 238, 239; R.S., R.C., & C.L., §§ 4184, 4185; C.S., §§ 6695, 6696; I.C.A.,§§ 5-613, 5-614, were repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho Civil Procedure Rules 7(a), 13(a) to 13(c), 13(e), 18(a).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 240; R.S., R.C., & C.L., § 4186; C.S., § 6695; I.C.A.,§ 5-615, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho R. Civ. P. 13(g).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 241; R.S., R.C., & C.L., § 4187; C.S., § 6698; I.C.A.,§ 5-616, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho Civil Procedure Rules 7(c), 8(b), 8(e)(2), 10(b), 12(b), 13(b), 18(a).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 242; R.S., R.C., & C.L., § 4188; C.S., § 6699; am. 1927, ch. 58, § 1, p. 71; I.C.A.,§ 5-617, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho Civil Procedure Rules 5(a), 5(c), 7(a), 7(c), 8(a)(1), 8(a)(2), 8(b), 12(a), 12(b), 13(a), 13(c), 13(g), 18(a).

Compiler’s Notes.

These sections, which comprised C.C.P. 1881, §§ 243, 244; R.S., R.C., & C.L., §§ 4193, 4194; C.S., §§ 6700, 6701; I.C.A.,§§ 5-618, 5-619, were repealed by S.L. 1975, ch. 242, § 1. For present rules, see Idaho Civil Procedure Rules 7(a), 7(c), 8(e)(2), 12(b), 12(e), 12(f).

Compiler’s Notes.

These sections, which comprised C.C.P. 1881, § 245; 1905, p. 75, § 1; reen. R.C. & C.L., §§ 4198, 4199; am. 1911, ch. 214, § 1, p. 687; reen. C.L., § 4199; C.S., §§ 6702, 6703; I.C.A.,§§ 5-701, 5-702, were repealed by S.L. 1975, ch. 232, § 1, effective March 31, 1975. For present rules, see Idaho Civil Procedure Rules 5(b), 7(b)(2), 11(a)(1) to 11(a)(3), 11(c).

Compiler’s Notes.

These sections, which comprised C.C.P. 1881,§§ 246-248; R.S., R.C., & C.L.,§§ 4200-4202; C.S.,§§ 6704-6706; I.C.A.,§§ 5-703 — 5-705, were repealed by S.L. 1975, ch. 242, § 1. For present rule, see Idaho R. Civ. P. 36(a).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 249; R.S., R.C., & C.L., § 4207; C.S., § 6707; I.C.A.,§ 5-801, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho R. Civ. P. 8(f).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 250; R.S., R.C., & C.L., § 4208; C.S., § 6708; I.C.A.,§ 5-802, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho R. Civ. P. 12(f).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 251; R.S., R.C., & C.L., § 4209; C.S, § 6709; I.C.A.,§ 5-803, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho R. Civ. P. 12(e).

Compiler’s Notes.

This section, which comprised C.S., § 6709A, as added by 1931, ch. 11, § 1, p. 15; I.C.A.,§ 5-804, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho Civil Procedure Rules 7(c), 10(c), 12(e).

Compiler’s Notes.

These sections, which comprised C.C.P. 1881,§§ 252-258; R.S., R.C., & C.L.,§§ 4210-4216; C.S.,§§ 6710-6716; I.C.A.,§§ 5-805 — 5-811, were repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rules, see Idaho Civil Procedure Rules 9(a) to 9(j).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 259; R.S., R.C., & C.L., § 4217; C.S., § 6717; I.C.A,§ 5-812, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho Civil Procedure Rules 7(a), 8(b), 8(d), 9(f).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 260; R.S., R.C., & C.L., § 4218; C.S., § 6718; I.C.A.,§ 5-813, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho Civil Procedure Rules 8(d), 9(f).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 261; R.S., R.C., & C.L., § 4219; C.S., § 6719; I.C.A.,§ 5-814, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho R. Civ. P. 15(d).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 262; R.S., R.C., & C.L., § 4220; C.S., § 6720; I.C.A.,§ 5-815, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho R. Civ. P. 5(a) to 5(e).

Compiler’s Notes.

This section, which comprised 1907, p. 323, § 1; reen. R.C. & C.L., § 4221; C.S., § 6721; I.C.A.,§ 5-816, was repealed by S.L. 1975, ch. 242, § 1. For present rule, see Idaho R. Civ. P. 8(c).

Compiler’s Notes.

This section numbered 5-830 was added as a rule of procedure and practice for the courts of Idaho by order of the Supreme Court promulgated March 19, 1951 which order was rescinded by order of the Supreme Court promulgated October 24, 1974, effective January 1, 1975. It is deemed to have been superseded by Idaho Civil Procedure Rules 16(a) to 16(i).

Compiler’s Notes.

These sections, which comprised C.C.P. 1881, §§ 263, 264; R.S., R.C., & C.L., §§ 4225, 4226; C.S., §§ 6722, 6723; I.C.A.,§§ 5-901, 5-902, were repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rules, see Idaho Civil Procedure Rules 13(f), 15(b).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 265; R.S., R.C., & C.L., § 4227; C.S., § 6724; I.C.A.,§ 5-903, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho R. Civ. P. 15(b).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 266; R.S., R.C., & C.L., § 4228; C.S., § 6725; I.C.A.,§ 5-904, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho Civil Procedure Rules 7(c), 12(g), 13(f), 15(a).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 267; R.S., R.C., & C.L., § 4229; C.S., § 6726; am. 1921, ch. 235, § 1, p. 526; I.C.A.,§ 5-905, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho Civil Procedure Rules 13(f), 15(a), 15(b), 55(c), 60(a), 60(b).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 268; R.S., R.C., & C.L., § 4230; C.S., § 6727; I.C.A.,§ 5-906, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho R. Civ. P. 10(a)(4).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 269; R.S., R.C., & C.L., § 4231; C.S., § 6728; I.C.A.,§ 5-907, was repealed by S.L. 1975, ch. 242, § 1. For present rule, see Idaho Civil Procedure Rules 8(f), 60(a), 61.

Compiler’s Notes.

Section 4 of S.L. 1982, ch. 311 amended and redesignated these sections as§§ 32-1101 to 32-1126. The amended and redesignated sections were repealed by S.L. 2000, ch. 227, which also enacted the uniform child custody jurisdiction and enforcement act, see§ 32-11-101 et seq.